NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4047-03T24047-03T2

COMMITTEE FOR A BETTER TWIN RIVERS,

DIANNE MCCARTHY, HAIM BAR-AKIVA

and BRUCE FRITZGES,

Plaintiffs-Appellants/

Cross-Respondents,

v.

TWIN RIVERS HOMEOWNERS' ASSOCIATION,

TWIN RIVERS COMMUNITY TRUST, and SCOTT POHL,

Defendants-Respondents/

Cross-Appellants.

________________________________________

Argued: April 19, 2005 - Decided:

Before Judges Kestin, Lefelt and Fuentes.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Mercer County, C-121-00.

Frank Askin argued the cause for appellants/cross-respondents (Rutgers Constitutional Litigation Clinic, attorneys; Mr. Askin, on the brief).

Barry S. Goodman argued the cause for respondents/cross-appellants Twin Rivers Homeowners' Association and Twin Rivers Community Trust (Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, and Kennedy, Wronko, Kennedy, attorneys; Mr. Goodman with Karyn A. Kennedy Branco, of counsel and on the brief; Jane Felton and David S. Schechter, on the brief).

Michael S. Karpoff argued the cause for respondent/cross-appellant Pohl (Hill Wallack, attorneys; Mr. Karpoff, on the brief).

Hueston, McNulty, Mueller & DeGonge; Pepper Hamilton; and Nowell Amoroso Klein & Bierman, attorneys for amicus curiae Community Associations Institute (Samuel J. McNulty and Dennis R. Casale, of counsel and on the brief; Audrey D. Wisotsky and Thomas Martin, on the brief).

The opinion of the court was delivered by

KESTIN, P.J.A.D.

In this appeal, among other issues, we address the questions whether, and in what circumstances, the expressive rights guarantees of the New Jersey Constitution limit the authority of those who govern a community association in setting and administering standards for that community; the extent to which the Planned Real Estate Development Full Disclosure Act applies to a community established before the statute was enacted; and questions bearing upon the application of the business judgment rule and contractual standards.

Plaintiff Committee for a Better Twin Rivers (CBTR) is a non-profit, unincorporated association comprised of residents of Twin Rivers, a planned unit development in East Windsor. The individual plaintiffs, Dianne McCarthy, Haim Bar-Akiva, and Bruce Fritzges are residents of Twin Rivers. McCarthy and Bar-Akiva are members of CBTR. The defendants are the Twin Rivers Homeowners' Association (TRHA), the Twin Rivers Community Trust (TRCT), and Scott Pohl, the president of TRHA and a member of TRHA's board of trustees.

Plaintiffs sued for declaratory and injunctive relief in a nine-count complaint. Count one of the amended complaint sought mandatory injunctive relief permitting "the posting of political signs" on the property of community residents "and on common elements under reasonable regulation." Count two sought mandatory injunctions "to allow plaintiffs to utilize the community room in the same manner as other similarly situated entities." In the third count, plaintiffs sought "equal access" to the pages of Twin Rivers Today (TRT), "the official newspaper of Twin Rivers. . . . published and distributed monthly to each resident by the TRHA[;]" mandatory injunctive relief that would permit the "expression of their views [therein] concerning the management of the community[;]" and an injunction against "the president of [TRHA] from using TRT as his own personal political trumpet[.]" In counts four and five respectively, plaintiffs sought the right to tape record TRHA board meetings and to have access to TRHA financial records. In count six, plaintiffs sought declaratory rulings establishing the invalidity of a TRHA board resolution that provided for the discipline of board members suspected of disclosing information deemed confidential, and determining that plaintiff McCarthy had not violated the resolution; along with an expungement of McCarthy's censure in TRHA records. In count seven, plaintiffs sought "access to lists of eligible voters [in TRHA elections] without unreasonable conditions." Count eight sought an improved alternate dispute resolution mechanism over that in established TRHA procedures, as well as mandatory injunctive relief "re-establishing the voting rights of plaintiff Bruce Fritzges and other TRHA members similarly situated." In count nine, plaintiffs sought a declaratory judgment that the then-current weighted-voting provisions of TRHA's charter and bylaws violated the New Jersey Constitution, requiring reformation. Plaintiffs also sought counsel fees and costs.

The parties filed cross-motions for summary judgment. The motion judge granted summary judgment in favor of plaintiffs on certain elements of counts two and seven and on count six; and in favor of defendants on other elements of counts two and seven, and on counts one, three, five, eight, and nine. The court's order also memorialized rulings on "three overarching issues":

that TRHA is not subject to the constitutional limitations imposed on state actors, at least in the factual context specifically presented in this case; that the 1993 amendments to PREDFDA [the Planned Real Estate Development Full Disclosure Act], as codified in N.J.S.A. 45:22A-43 to -48, apply to Twin Rivers; and that Plaintiff CBTR is dismissed from the case for lack of standing.

The reasons for the court's summary judgment determinations and rulings were expressed in a comprehensive written opinion appended to the order.

I

Plaintiffs appeal from the disposition as to counts one, two (in part), three, five, eight, and nine. They challenge the "overarching" ruling regarding constitutional limitations, specifically contending that the motion judge erred in upholding defendants' policies restricting signs on residents' lawns, charging assertedly excessive fees for use of the community room, refusing to afford equal coverage to plaintiffs' views in the Twin Rivers Today newsletter, withholding access to financial documents, disenfranchising plaintiff Fritzges for refusing to pay a fee and failing to provide alternative dispute resolution for his dispute, and weighting TRHA voting according to property value. Plaintiffs also challenge the judge's holding that CBTR did not have standing.

Defendants appeal from the disposition of counts two (in part), six and seven (in part). They challenge the judge's "overarching" ruling that PREDFDA applies to Twin Rivers. Defendants also contend specifically that the judge erred in invalidating existing TRHA standards governing use of the community room as "impermissibly vague. . . . and direct[ing] that the regulations for the use of the room be modified to provide clear standards for the granting or withholding of permission for its use;" disallowing certain TRHA standards regarding the confidentiality of documents; and invalidating a liquidated damages provision for violation of the confidentiality agreement required before a member may obtain TRHA's voting list.

Plaintiffs depict this appeal as squarely presenting the one question "left unanswered . . . in Mulligan v. Panther Valley Property Owners Ass'n, 337 N.J. Super. 293 (App. Div. 2001), because of an insufficient record: i.e., whether defendant association 'performed quasi-municipal functions, such that its actions perhaps should be viewed as analogous to governmental actions in some regards.'" Id. at 305. Plaintiffs assert that "[t]he record in this case fills the gap that existed in the Panther Valley record, and demonstrates that Twin Rivers operates as a constitutional actor." Defendants join issue, contending that the conduct involved is that of private actors not subject to constitutional control, and must be evaluated under the business judgment rule and an analysis of contractual rights. Amicus curiae, Community Associations Institute, has filed a brief in support of defendants' positions.

II

The motion judge, in his opinion, set out the factual background of the matter:

Twin Rivers is a planned unit development ("PUD") consisting of privately-owned condominium duplexes, townhouses, single family homes, apartments and commercial buildings located in the Township of East Windsor, New Jersey. The community covers about one square mile in area and contains a population of approximately 10,000 people occupying some 2,700 residences. The Twin Rivers Community Trust ("TRCT" or "Trust") was created by Indenture on November 13, 1969 for the stated purpose of owning, managing, operating and maintaining the residential common property of Twin Rivers. Each property owner is assessed a fee to fund the managerial and operational expenses of the Trust.

Twin Rivers Homeowners Association ("TRHA" or "Association") has sole discretion, under the indenture, to make reasonable rules and regulations for the conduct of its members upon the land owned or controlled by the Trust. All property owners in Twin Rivers are automatically members of the Association and beneficiaries of the Trust. Purchasers are required, as a condition of purchase, to accept the regulations of the TRHA Articles of Incorporation and its By-Laws. Violations of the rules are punishable by fines, which can range in amount from $50 to $500. The Association is governed by a Board of Directors ("Board"), whose members are elected by all eligible voting members of the Association. The Board serves as trustee for TRCT. All members of the Association who are in "good standing" at the time of the elections are eligible to vote for nominees to the Board.

Twin Rivers provides various amenities for the exclusive use of its residents, including parks, four pool complexes, handball and basketball courts, ball fields, and playgrounds. Twin Rivers also offers certain services to its residents, including lawn maintenance, recycling, garbage collection for certain sections of the community, snow removal, and street lighting. Located within the "boundaries" of Twin Rivers are various private commercial businesses such as dry cleaners, gas stations and banks. Several public facilities are also located within the borders of Twin Rivers, including schools, a county library and a firehouse. These public facilities are provided and maintained by the Township of East Windsor. In addition to the 34 private roads in Twin Rivers, a state highway also runs through the community.

In addition to the foregoing, TRHA sponsors recreational and sports activities, trips, events, and a day camp.

Twin Rivers is not a gated community. Its roads are open to public traffic. The TRCT administrator certified, however, that "[t]rust-owned property and facilities are for the exclusive use of Twin Rivers residents and their invited guests," and that the "general public is not invited" to use them.

TRHA expected to collect over $3,000,000 from homeowners' maintenance fees in 2001, and its annual budget was nearly $3,500,000. It had over twenty year-round employees and fifty who worked on a seasonal basis.

In a document before the trial court on the motions for summary judgment, the TRCT administrator listed services that the Township of East Windsor provides to Twin Rivers' residents. Those services include police, firefighting, first aid, road and traffic control, public education, health and welfare provisions, water and sewage systems, and zoning and building codes.

Plaintiffs' expert, Evan McKenzie, an associate professor of political science at the University of Illinois and an attorney, certified that Twin Rivers's centralized shopping area, "looks and feels like a town," and that TRHA delivered "a broad range of traditional municipal services" to its residents. He opined that "privately governed communities in this country," including Twin Rivers, "have substantially replaced municipal government as the most immediate form of government for their residents" and "exercise government-like dominion over their residents without formal accountability to the public political process."

Arlene Mulry-Pearl, a real estate broker dealing in Twin Rivers properties for twenty-six years, a resident of Twin Rivers for over twenty-four years, and the owner of a townhouse there, opined that it was a desirable community, clean and well-maintained, with attractive recreational facilities. She attributed the steadily increasing home values in Twin Rivers to TRHA's rules and regulations, which insured that needed repairs were done and "maintain[ed] the beauty and integrity of the community." She noted that the Twin Rivers "monthly maintenance fee is quite reasonable and a good value" compared to fees charged in other developments in the area.

The motion judge, in his opinion, described the plaintiffs as follows:

The individual Plaintiffs are residents of Twin Rivers and members of the Association. Dianne McCarthy was also a member of the Board of Directors, (although now a former member). All of the Plaintiffs, with the exception of Bruce Fritzges, are also members of an unincorporated association known as The Committee for a Better Twin Rivers ("CBTR"). CBTR was organized for the stated purpose of focusing the efforts of Twin Rivers residents interested in changing the manner in which Twin Rivers is administered. It does not have any formal membership requirements, but it is recognized throughout the community, and its activities are regularly reported and commented upon in the community newspaper, Twin Rivers Today ("TRT").

In framing the questions to be addressed, the motion judge noted the presentation of the "three overarching issues," which he characterized as follows: "whether Twin Rivers has 'quasi-municipal' status, the applicability of PREDFDA, and whether CBTR has standing to appear as a plaintiff in this case." These issues are before us on appeal, as well. As we have noted, the judge decided the first and third adversely to plaintiffs and the second adversely to defendants. We will review and pass upon the motion judge's disposition of those three issues before addressing any of the particular questions he decided.

III

We disagree with the trial court's determination that TRHA is not subject to constitutional limitations such as those imposed on public sector actors. The basis for the trial court's ruling was that no governmental entity had delegated governmental powers to TRHA, and that TRHA performed no inherently governmental functions. In arriving at our conclusion that this ruling was erroneous, we eschew the use of the term "quasi-municipal" because, in the context of the issues before us, it tends to beg the question and adds nothing to the necessary inquiries. We are called upon to determine whether the standard-setting and standard-applying exercises at issue are essentially in performance of public functions or impact with sufficient directness upon public interests to call into play the constitutional limitations that classically apply to public sector actors, but which the New Jersey Constitution applies more broadly.

A.

The motion judge cogently summarized the positions of the parties on this status issue as follows:

Plaintiffs claim that TRHA has substantially replaced the role of the municipality in the lives of its ten thousand residents, by providing various services that are traditionally performed by municipal bodies, and should therefore be subject to the same constitutional limitations as a municipality in creating "laws" for the community. The Board of the Association functions as a municipal council, and the mandatory assessments levied on owners are, they argue, the equivalent of a tax. Therefore, Plaintiffs argue, TRHA should be required to respect the same constitutional boundaries that would be required of a municipality. Plaintiffs further argue that the provisions of the Condominium Act at N.J.S.A. 46:8B-15(f) which allow for an Association to impose fines as penalties for violation of its rules are a delegation of police powers which are unique to the government, and therefore, the Association takes on "quasi-municipal" status, in part, because of this ability to impose fines. Defendants reject the assertion that Twin Rivers is equivalent to a municipality, and that the Constitution applies to TRHA in the same way it applies to state actors. TRHA and the Trust are non-profit organizations, and Defendants claim that it is well settled law in New Jersey that the business judgment rule is the standard of review for the duly enacted policies and decisions of their board of trustees. Defendants argue that the burden is on Plaintiffs to show that the decisions of the Board were fraudulent, self-dealing or unconscionable; which Defendants assert they cannot and do not do in their pleadings.

B.

Nationally, as of 1999, 42,000,000 Americans lived in community associations. Clifford J. Treese, Community Associations Factbook 6 (Frank H. Spink ed., 1999).

In a paper presented at a governmental services conference in 2002, Edward Hannaman, the association regulator in the Planned Real Estate Development Unit, Bureau of Homeowner Protection, Division of Codes and Standards of the Department of Community Affairs, noted that, in New Jersey, 40% of private residences and over 1,000,000 people were governed by homeowner's associations. According to him, almost 20% of "new homebuyers" were required to join community associations in 1996, and the number increased to over 30% in 2000. According to the Mercer County multiple listing service, 23% of real estate listings for homes in that county in 2002 required membership in condominium or homeowners' associations.

Hannaman said that complaints revealed an "undemocratic life" in many associations, with homeowners unable to obtain the attention of their board or manager. Boards "acting contrary to law, their governing documents or to fundamental democratic principles, are unstoppable without extreme owner effort and often costly litigation." Board members "dispute compliance" with their legal obligations and use their powers to punish owners with opposing views. "The complete absence of even minimally required standards, training or even orientation for those sitting on boards and the lack of independent oversight is readily apparent in the way boards exercise control."

Hannaman described instances of abuse of power in some detail while conceding that there were "many good associations." He stressed, however that, typically, power was centralized in boards, which acted as executive, legislature and judiciary.

An Assembly Task Force to Study Homeowners' Associations, created by Assembly Resolution No. 47 of 1996, reported in 1998 that associations' duties were "increasingly governmental" and that they exercised "quasi-governmental powers." The Task Force recommended that associations be subject to several government standards, including public bidding and disclosure of conflicts of interest.

The Task Force reported that "many residents feel that the 'balance of power' hangs too heavily in the direction of the association board. The testimony indicated that more should be done to safeguard homeowners' rights of due process, including guidelines for fair elections of board members. . . . " The Task Force recommended oversight of board action by the Commissioner of Community Affairs to protect residents' rights and to ensure against capricious use of board power. The Legislature has not acted on the recommendations of the Task Force.

In contrast, the Community Associations Factbook states: "Community associations are arguably the most representative and responsive form of democracy found in America today. Residents of a community freely elect neighbors to serve on a board of directors of that community." Treese, supra, at 9.

C.

Plaintiffs assert that, just as shopping centers that are technically private have replaced downtown business districts, planned developments that are technically private have replaced towns. Plaintiffs argue that fundamental constitutional rights must be protected despite these changes in the environment in which they are exercised. They contend that their status as residents of a private community, rather than visitors to private property, strengthens their position.

Defendants counter that the judge properly applied the business judgment rule as the basic criterion governing their conduct. They contend that constitutional standards apply to private actors only when they invite the public onto their property, and that plaintiffs are members of the TRHA, not the invited public. Defendants assert that "[a]pplying the Constitution as a whole would fundamentally alter the very nature of planned developments."

The argument in favor of the application of constitutional standards has its roots in Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946). There, appellant was convicted of trespassing for distributing religious literature in Chickasaw, a "company-owned town[,]" which was otherwise open to the public. 326 U.S. at 502, 66 S. Ct. at 277, 90 L. Ed. at 266. Invalidating the application of the state trespassing statute in the circumstances at hand, the Court held that "those people who live in or come to Chickasaw [cannot] be denied freedom of press and religion simply because a single company has legal title to all the town[.]" 326 U.S. at 505, 66 S. Ct. at 278, 90 L. Ed. at 268.

The Court balanced "the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion," noting that "the latter occupy a preferred position." 326 U.S. at 509, 66 S. Ct. at 280, 90 L. Ed. at 270. The Court explained: "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." 326 U.S. at 506, 66 S. Ct. at 278, 90 L. Ed. at 268.

The Court held that people who live in company-owned towns, like residents of municipalities, "are free citizens of their State and country," and that "[t]here is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen." 326 U.S. at 508-09, 66 S. Ct. at 280, 90 L. Ed. at 270.

In State v. Schmid, 84 N.J. 535, 538 (1980), appeal dismissed, sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed.2d 855 (1982), defendant was convicted of trespassing for distributing political literature on the campus of Princeton University. The Supreme Court of New Jersey declined to rule on the basis of the First Amendment to the United States Constitution, recognizing that the New Jersey Constitution was an "independent source of individual rights[,]" id. at 555, which could "surpass the guarantees of the federal Constitution." Id. at 553. The Court specifically cited two provisions of the New Jersey Constitution as "more sweeping in scope than the language of the First Amendment[.]" 84 N.J. at 557.

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press . . . .

[N.J. Const. (1947) art. I, ¶ 6.]

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

[N.J. Const. (1947), art. I, ¶ 18.]

Noting that the interpretation of the New Jersey Constitution is not subject to "constraints arising out of principles of federalism[,]" id. at 559, the Court, in an opinion authored by Justice Handler, held that the guarantees the State Constitution confers can be available against private entities, as well as governmental entities, when the private entities have "assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property." Id. at 560. The Court adopted a balancing test for resolving the conflict between the protections to be accorded private property and those to be given to expressive exercises upon such property:

This standard must take into account (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.

[Id. at 563.]

The Court added that private property owners were entitled to impose reasonable rules "governing the time, place and manner for the exercise of such expressional rights." Ibid. Because the University regulations at issue contained no standards, the Court held that the University had violated defendant's "State constitutional rights of expression in evicting him and securing his arrest for distributing political literature upon its campus." Id. at 568.

In New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994), cert. denied sub nom. Short Hills Ass'n v. New Jersey Coalition, 516 U.S. 812, 116 S. Ct. 62, 133 L. Ed.2d 25 (1995), the Court, in an opinion by Chief Justice Wilentz, confirmed that "the State right of free speech is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities." Id. at 353. In that case, the Court applied its ruling in Schmid to large, regional shopping centers. Employing the Schmid balancing test, the Court concluded that "the balance of factors clearly predominates in favor of" the constitutional obligation to allow leafletting at the shopping centers on issues of public import, observing that "the right sought is no more discordant with [the owners'] uses of their property than is the leafletting that has been exercised for centuries within downtown business districts discordant with their use." Id. at 334.

The Court observed that suburban shopping centers "have substantially displaced the downtown business districts as the centers of commercial and social activity." Id. at 346.

Although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities, encompassing practically all aspects of a downtown business district, including expressive uses and community events. We know of no private property that more closely resembles public property.

[Id. at 333.]

[I]n the process of creating new downtown business districts, [defendants] will have seriously diminished the value of free speech if it can be shut off at these centers. Their commercial success has been striking but with that success goes a constitutional responsibility.

[Id. at 335.]

The Court emphasized that we have lived with and permitted free speech for over 200 years; "it is constitutionally protected; it is part of this State, and so are these centers." Ibid. The Court concluded that the public use of shopping centers was "so pervasive that its all-embracing invitation to the public necessarily includes the implied invitation for plaintiff's leafletting." Id. at 355.

The Court said that the first two factors of the Schmid test, "are best considered together, for in this case they are most closely interrelated." Id., 138 N.J. at 357. The Court explained that defendants' private property was transformed "to the mirror image of a downtown business district and beyond that, a replica of the community itself;" and that this "gives rise to an implied invitation of constitutional dimensions that cannot be obliterated by defendants' attempted denial of that invitation." Id. at 360. The Court thus found that the first two elements of the test, the nature and extent of the public's invitation to use the property, "point strongly in the direction of a constitutional right of free speech." Id. at 361.

The Court explained that the third element of the Schmid test, the relationship between the purpose of the expressional activity and the private and public use of the property, "examines the compatibility of the free speech sought to be exercised with the uses of the property." Ibid. The Court found that "the more than two hundred years of compatibility between free speech and the downtown business district is proof enough of its compatibility with these shopping centers." Ibid.

Although each of the three Schmid factors supported plaintiffs' right to free speech, the Court in Coalition also based its decision on "the general balancing of expressional rights and private property rights." Id., 138 N.J. at 362. The Court determined that the plaintiffs' leafletting would not have any adverse effect on the defendants' businesses, id. at 361, and that the defendants had "intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community[.]" Id. at 363. The Court concluded that "[t]he sliding scale cannot slide any farther in the direction of public use and diminished private property interests." Id. at 363. The Court held that "interference by defendants with plaintiffs' rights constitutes unreasonably restrictive or oppressive conduct." Id. at 365.

The Court further stressed that "constitutional provisions of this magnitude should be interpreted in light of a changed society," and that the emergence of shopping centers as competitors of and successors to downtown business districts was a significant historical change. Id., 138 N.J. at 368. Emphasizing that the constitutional right to free speech in New Jersey is "an affirmative right" that is "different from practically all others in the nation," and cannot be unreasonably restricted by either government or private entities, id. at 369, the Court said: "If our State constitutional right of free speech has any substance, it must continue to follow [its] historic path." Id. at 368. The Court concluded: "We do not believe that those who adopted a constitutional provision granting a right of free speech wanted it to diminish in importance as society changed, to be dependent on the unrelated accidents of economic transformation, or to be silenced because of a new way of doing business." Id. at 370.

We are mindful that the Court specifically limited its holding to larger, regional shopping centers, id. at 373-74, and to "leafletting and associated speech" pertaining to "causes, candidates, and parties——political and societal free speech." Id. at 374. The Court allowed these shopping centers "extremely broad" power to regulate "the time, place and manner of exercising the right of free speech." Id. at 377.

In the face of the New Jersey Constitution's affirmatively framed, imperatively announced, and broadly applicable right to free speech, we conclude, in balancing the interests of the parties, that, in the circumstances presented by this matter, plaintiffs' rights to engage in expressive exercises——including those relating to public issues in their own community, such as with regard to the election of candidates to the TRHA Board, or broader issues of governmental and public policy consequence, or matters of general interest——must take precedence over the TRHA's private property interests.

The supremacy of free speech is a significant element of the required balance. Freedom of speech, as a fundamental right, "occupies a preferred position in our system of constitutionally-protected interests." Schmid, supra, 84 N.J. at 558 (quoting State v. Miller, 83 N.J. 402, 411 (1980) (invalidating, as violative of the First Amendment, a zoning ordinance prohibiting a sign concerning a matter of public interest on residential property)); Guttenberg Taxpayers and Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n (Galaxy Towers II), 297 N.J. Super. 404, 409 (Ch. Div.), aff'd o.b., 297 N.J. Super. 309 (App. Div. 1996), certif. denied, 149 N.J. 141 (1997) (holding that, under the New Jersey Constitution, a condominium association that endorsed candidates must allow access to opposition).

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. "Common interest developments are the fastest growing form of housing in the United States." Mulligan, supra, 337 N.J. Super. at 301. "New Jersey is among the states in which residential community associations are most common." Ibid.

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 have changed old ones. See Coalition, supra, 138 N.J. at 368. 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 arrangements, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities. See id. at 370.

The motion judge in this matter did not consider the impact of the holdings in Schmid and Coalition, except to observe that Twin Rivers was "no more a municipality" than was a university or a mall. He did not adequately address plaintiffs' argument that, even if Twin Rivers is viewed solely as private property, the TRHA can be required to allow free speech and other expressive exercises, as broadly guaranteed in the New Jersey Constitution even as to non-governmental actors, when the public interest weighs more heavily in the balance than the private property rights involved. See Coalition, supra, 138 N.J. at 334; Schmid, supra, 84 N.J. at 562.

Defendants rely on Bluvias v. Winfield Mutual Housing Corp., 114 N.J. 589, 590 (1989), in which the plaintiffs claimed that bylaws of the defendant housing cooperative, which favored existing members and their families, violated the equal protection guarantees of the State and federal constitutions. Holding that the defendant's board, "the claimed state actor," was a separate entity from the town government and the town was therefore not a "company town" under Marsh v. Alabama, supra, 326 U.S. 501, the Court dismissed the appeal because it presented no constitutional issues.

Here, plaintiffs do not argue that Twin Rivers is a state actor, but assert that it is a "constitutional actor required to respect fundamental rights protected by the New Jersey Constitution when exercising dominion over persons residing within its borders." We recognize the distinction as valid.

Since the decision in Bluvias——which did not involve fundamental rights——the New Jersey Supreme Court has held that the State constitutional right to free speech "means communicating with the people in the new commercial and social centers; if the people have left for the shopping centers, our constitutional right includes the right to go there too, to follow them, and to talk to them." Coalition, supra, 138 N.J. at 370. It is evident that plaintiffs' fundamental rights as established in the New Jersey Constitution, including their free speech rights, must also follow them to their new residences in planned developments.

We have also acknowledged that the constitutional right to free speech could outweigh the property rights of a private condominium association even in the absence of an express or implied invitation to the public or the speaker. In Guttenberg Taxpayers and Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n (Galaxy Towers I), 296 N.J. Super. 101, 104 (App. Div. 1995), the defendant condominium association endorsed several school board candidates by distributing flyers, but denied the request of the plaintiffs——an unrelated, "nonprofit . . . association involved in political activities in [the community,]" along with one of its trustees and a candidate——for permission to distribute literature endorsing their slate of candidates. Id. at 103. Without determining that the condominium association was a governmental actor for constitutional purposes, we relied on Schmid and Coalition to reverse the denial of a preliminary injunction that would have allowed plaintiffs to distribute their flyers. We remanded for a plenary hearing on the factual circumstances, stating:

The required balancing of property rights and free speech rights depends on a discreet consideration of the facts concerning the use of the property, as well as the practices of the condominium association with regard to its endorsement of political candidates and issues, and other activities deemed pertinent under the present case law.

[Id. at 108.]

After the hearing on the remand, in Galaxy Towers II, supra, 297 N.J. Super. at 409, the trial court found that the condominium was "routinely used for political campaigning," and that plaintiffs had no adequate substitute for door-to-door communication. The court said: "A level playing field requires equal access to this condominium because it has become in essence a political 'company town' . . . in which political access controlled by the Association is the only 'game in town.'" Id. at 411. We affirmed on the basis of the trial court's opinion. 297 N.J. Super. 309.

A trial court had reached the same result a quarter century earlier, before Schmid and Coalition, in State v. Kolcz, 114 N.J. Super. 408, 410 (Cty. Ct. 1971). There, the court dismissed complaints for criminal trespass against the defendants who had canvassed door-to-door in a private, planned retirement community, Rossmoor, to solicit signatures on a petition to change the form of municipal government. The court applied decisions relating to municipalities because Rossmoor "is in many essential regards a self-sufficient community." Id. at 415. In overturning convictions for criminal trespass under the predecessor statute of N.J.S.A. 2C:18-3, the court distinguished regulations of commercial speech from those affecting political speech, stating, after a review of state and federal court decisions dealing with the issue: "It appears that persons endeavoring to disseminate political or religious information are protected by the constitution, but those wishing to canvass an area for business purposes must yield to other considerations." Id. at 415. The court commented that denying the defendants the right to canvas "would, in effect, create a political 'isolation booth.'" Id. at 416.

Even several years before Kolcz, a trial court, in an opinion with which we expressed agreement, articulated an earlier version of the balancing test that has come to apply in such matters, although affirming a criminal trespass conviction:

This court is aware of the fact that under certain circumstances picketing on private property has been held not to constitute a trespass. Courts of other states have so held with regard to picketing on sidewalks in front of establishments located in a shopping center privately owned. In this regard, the courts have weighed the constitutional rights of free speech of pickets and the constitutional rights of owners of private property. One of the elements considered, however, was the circumstance as to whether the rights of free speech could have been exercised in a manner so that it would not have been rendered ineffective to bring home the message sought to be imparted to the public. In other words, the courts balanced the "equities" as between the parties.

[State v. Kirk, 84 N.J. Super. 151, 157 (Cty. Ct. 1964), aff'd o.b., 88 N.J. Super. 130 (App. Div. 1965).]

Here, we conclude, for the reasons stated in Galaxy Towers I, Galaxy Towers II, and Kolcz, as well as the policy insight in Kirk, that TRHA's status as a homeowners' association that has not invited the public to the community, should not preclude the application of the balancing test of Schmid and Coalition.

Defendants contend that, in Verna v. Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77, 84 (App. Div. 2004), decided after the trial court ruled in this matter, we held that constitutional analysis does not apply to the governance of a homeowners association. An examination of our opinion there discloses, however, that we declined to discuss whether parking restrictions met constitutional standards, because the issue was "clearly without merit . . . , R. 2:11-3(e)(1)(E)[.]" Ibid. We did not specify which constitutional standards were implicated or why they were inapplicable; and our decision not to address the application of fundamental expressive exercise rights guarantees to homeowners' associations in the context presented there in no way affects our consideration of the question here.

In short, we reject defendants' strenuously urged argument, propounded in an effort to minimize the impact of Schmid and Coalition, that the holdings in those cases were based on the private property owners' express or implied invitations to the public to enter and use the premises at issue. Even if that factual distinction had any persuasive force, it would furnish no adequate basis for holding that residents of Twin Rivers should be deprived of their fundamental rights guarantees under the State Constitution. The public/private distinction urged is too facile and may be misleading. Any person is free to accept Twin Rivers's invitation to purchase or rent property in that community; that choice cannot be at the expense of relinquishing what the New Jersey Constitution confers. Moreover, even where there has been no invitation to the public, our jurisprudence clearly allows access to private property to exercise constitutionally guaranteed rights. Twin Rivers is in New Jersey. The rights guarantees of our State Constitution apply in that community as in every other in the State.

In State v. Shack, 58 N.J. 297, 302 (1971), the Supreme Court reversed convictions for trespass against defendants who had entered a private farm to find and assist two migrant workers. The Court held that "ownership of real property does not include the right to bar access to governmental services available to migrant workers." Noting that migrant workers were disadvantaged, isolated and powerless, and that Congress had enacted legislation to assist them, the Court said: "Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law." Id. at 303.

In Galaxy Towers I, the absence of "any public invitation to use the property" did not require a judgment in favor of the condominium association. 296 N.J. Super. at 104. Similarly, in Kolcz, there was no public invitation to use the property.

Notwithstanding these approaches, we have sometimes upheld sanctions or limitations of expressive exercises because we have discerned no adequate basis for viewing private property as devoted to public use. See, e.g., State v. Brown, 212 N.J. Super. 61 (App. Div.), certif. denied, 107 N.J. 53 (1986) (trespass convictions for anti-abortion demonstration at a women's health clinic were affirmed, because the property was not sufficiently devoted to public use); Bellemead Dev. Corp. v. Schneider, 196 N.J. Super. 571, 575 (App. Div. 1984), certif. denied