To paraphrase Alexis DeTocqueville, the concentration of power, and the subjugation of individuals will only increase amongst democratic societies in the same proportion as people remain ignorant of government and corporate decisions, and fail to actively question or protest actions that negatively impact their lives and the communities in which they live. But how can communities ensure that government officials and corporations, including business and civic and other nonprofit organizations, conduct their operations in a manner that serves not only the interests of their members, owners or other identifiable stakeholders, but also the general public affected by their actions? By what standards should their decisions and actions be judged and otherwise evaluated?
There is little doubt that “accountability” can, in theory, prevent corruption in government as well as business and civil society, but it is less certain how to get particular government agencies or corporations to answer for specific actions to people with fewer resources and political influence, even where clear legal standards exist.
NJ Appleseed represents those negatively affected by specific government or corporate action that violates statutory and/or regulatory norms and requirements. We participate, on behalf of defined community interests, in administrative proceedings, court disputes and other public forums. Our principal goals and focus are:
- to represent individuals and groups whose rights to public participation, petition of the government and free speech are threatened, especially in the context of the development process;
- to represent community organizations seeking to enforce statutory or regulatory standards, especially in the areas of environmental harmful land use, discrimination, and government spending;
- to represent unincorporated organizations of residents who live in common interest communities, including condominiums and cooperatives, in seeking to ensure democratic governance of their communities; and
- to enhance state enforcement of consumer financial protections.
The Prerogative Writ Project
NJ Appleseed represents community organizations in court actions, when that is the only mechanism for forcing government officials to do what the law requires. Over the years, we have assisted a number of organizations in their efforts to hold the following government entities accountable to the public whose interests they serve:
The Pinelands Commission–South Jersey Pipeline
NJ Appleseed represents the NJ Sierra Club and Environment NJ in their efforts to reverse the Pineland Commission’s flawed decision-making in approving construction by South Jersey Gas Company of a natural gas pipeline through the Pinelands.
In the Matter of the Petition of S.J. Gas Company for a Consistency Determination for Proposed Natural Gas Pipeline, ____ N.J. Super. ____(App. Div. Nov. 7, 2016).
In the Matter of NJ Pinelands Commission Resolution PC-4-16-42 and PC4-17-03, A-2015-16, A-3055-16; A-3010-16 (pending).
North Bergen/Hudson County—Braddock Park
NJ Appleseed, along with the Eastern Environmental Law Center (EELC), represents the NJ Conservation Foundation, the NJ Sierra Club, the League of Women Voters-NJ and the Save Braddock Park–Safe Schools citizen’s group, in their efforts to bring to an end the Township of North Bergen’s unlawful diversion of Green Acres parkland in James J. Braddock Park, located in North Bergen and owned by Hudson County. The situation dates back to 2001, when North Bergen paved over a sports field in the Park and moved in 16 trailers for its preschool program. The arrangement was supposed to be temporary, with the preschool to move to Lincoln Elementary School once it was built. But 20 later later, the preschool is still in the trailers, an illegal arrangement because the Park is dedicated to open space and recreational purposes under the state Green Acres program. In 2011, the DEP notified the Town it was in violation of Green Acres requirements and asked for a “reasonable timetable” for removal of the trailers and restoration of the site, but the proposed date kept getting moved back. A public scoping hearing on the diversion was held in 2014, following which the Town and County filed a pre-application with the State. In August 2020, North Bergen pulled its application and notified the Green Acres Program that it intends to apply for a permanent diversion, and a second scoping hearing was held on August 11, 2020. If the State approves this diversion after the fact, Green Acres law requires replacement property consisting of five times as much acreage as what was diverted. The DEP found problems with the initial pre-application, which the town and county repeatedly failed to fix, as well as issues with the proposed replacement property.
NJ Appleseed and EELC wrote to the Attorney General, Green Acres, the Town and the County in June 2020 and again in November 2020, giving them notice that if this matter is not resolved as soon as possible, we will be filing an action under the Environmental Rights Act.
We wrote again, on March 19, 2021, in advance of the submission of a second pre-application for diversion by North Bergen, to provide an alternative analysis and submit a report prepared by Robert Walden, a member of Save Braddock Park-Safe Schools. The report sets forth our assertion that North Bergen has had sufficient time and financial resources to ensure that all its pre-school children would have appropriate facilities, obviating the need to make the 2001 diversion permanent. We urge the DEP to apply a broader analysis of the application that takes into account a broader analysis given how long the diversion has existed (20 years) and the nature of the proposed use, encompassing such factors as North Bergen’s declining preschool enrollment, its deliberate decision to bypass opportunities to acquire alternative property and its purchase of the Hi-Tech site, which should enable accommodating all pre-schoolers and which purchase was approved by voters based on representations to that effect.
The Pinelands Commission–Tuckahoe Turf Farms
We also represent the Pinelands Preservation Alliance and NJ Conservation Foundation in a challenge to decision-making by the Pinelands Commission that allowed the owner of the Tuckahoe Turf Farm, located in the Pinelands Protection Area, to use his property for soccer tournaments that draw hundreds of people. We objected that such use was not consistent with the Comprehensive Management Plan that governs use of the Pinelands nor with conservation restrictions for which the owner had been paid under the Pinelands Development Credit Program and the State Agriculture Retention and Development Program. The Appellate Division, however, affirmed the Commission’s actions in a July 12, 2018 opinion. Among other reasons, it found the challenge moot as a result of legislation in 2016 that amended the Pinelands Preservation Act to allow soccer as a low-intensity recreational use on active farms located within the Pinelands Protection Area. We filed a petition for certification asking the New Jersey Supreme Court to review that ruling on the ground that the Commission’s and Appellate Division’s failure to enforce the conservation restrictions undermines the ability to rely on protections on which billions of dollars of public money has been spent. The Court denied review on December 17, 2018.
In re Pinelands Commission’s Consistency Determination Approving Tuckahoe Turf Farm Application No. 1984-0389.009, A-5025-14, A-3417-15, A-3670-16.
Appellate Brief, Appendix I and Appendix II, Reply Brief, and Certification by Carleton Montgomery of the Pinelands Preservation Alliance.
NJ Department of Environmental Protection–Green Acres
In 2015, we represented the Pinelands Preservation Alliance and NJ Conservation Foundation in seeking reversal of a decision by the Department of Environmental Protection (DEP). The DEP had determined in 2014 that a 1.43-acre area consisting of a municipal ball field, playground and adjacent wooded area in Upper Township did not constitute unfunded parkland under Green Acres rules because it was not listed on the Recreational and Open Space Inventory (ROSI) provided by the town to the DEP in order to obtain Green Acres funding. Thus, the sale or transfer of the property would not trigger DEP rules against diversion. The DEP reaffirmed that determination in 2015 but NJ Appleseed subsequently proved that the ROSI relied on by the DEP incorrectly omitted the property. As a result, the DEP reversed its initial determination in 2017 and the ROSI was amended. The request for the determination had come from South Jersey Gas Company, which wanted to use the land in question for a pipeline it is trying to build through the Pinelands but it is now barred from using that property.
In the Matter of Township of Upper, County of Cape May, Block 350, Lot 12, Recreation and Open Space Inventory Final Determination, A-1787-15 (remanded and reversed).
We represent the Pinelands Preservation Alliance and NJ Conservation Foundation in a appeal from a DEP decision that granted a partial release of conservation restrictions on preserved parkland in Stafford Township. We won a remand, with the DEP conceding that it failed to require any compensatory land in exchange for the diverted parkland and stating that it would review its prior erroneous assumption that the parkland was not a habitat for threatened or endangered species. We unsuccessfully appealed the DEP’s modified decision on the grounds that it violated its own rules and accepted replacement property that did not adequately compensate for the diversion.
In the Matter of the Certificate of the Department of Environmental Protection Granting Partial Release of Conservation Restrictions, A-2316-10 (App. Div. July 31, 2017).
Post-Remand Brief and Reply Brief.
NJ Department of Community Affairs and Private Developer
We filed an action on behalf of a host of affordable housing organizations against Applied Housing Management Company and the NJ Department of Community Affairs, alleging violation of laws governing limited dividend corporations and the charitable trust doctrine. The action arose when Applied pre-paid its Section 8 mortgage loans on its Hoboken apartment buildings, and asked the state to remove its affordable housing obligations. The trial court declined jurisdiction, and the matter was settled in 2001 under the auspices of the appellate court. Applied agreed that 40% of its apartments would remain affordable.
Housing and Community Development Network of New Jersey v. Applied Housing Management Co., Inc., HUD-C-141-00, A-4832-00.
U.S. Department of Education and For-Profit Schools
We filed an Amicus Brief with the Third U.S. Circuit Court of Appeals on behalf of NJ Appleseed and NJ Citizen Action in support of plaintiffs in a False Claims Act or qui tam suit against Eastwick College and Hohokus Schools, both for-profit entities. The plaintiffs alleged that the schools improperly drew against federal financial aid after students withdrew and through improper and excessive book and lab fees and that they falsely certified compliance with certain federal requirements, in addition to claims of fraud in recruiting and abuses in grading. A federal district judge in NJ dismissed the case for failure to state a claim and also refused to allow the filing of a supplemental amended complaint. The Third Circuit affirmed.
U.S. ex rel. Whatley v. Eastwick College, 657 F. App’x 89 (3d Cir. 2016).
Motion to File Amicus Brief.
NJ Appleseed successfully challenged the state’s impoundment of funds from the Affordable Housing Fund prior to the end of the fiscal year. The case was filed in Mercer County Chancery Division in 1994 with a request for a temporary restraining order. Shortly after, Judge Philip Carchman ruled the funds had been wrongfully impounded and ordered them released to the Affordable Housing Fund.
Non-Profit Affordable Housing Network of New Jersey v. Whitman, (MER-Ch., June 30, 1994).
NJ State Police
NJ Appleseed conducted approximately 8-years of litigation on behalf of 13 black state troopers who spoke out about racial profiling and employment discrimination. We initially filed an EEOC complaint in 1993 and a discrimination complaint was filed in state court in 1995, with the assistance of pro bono counsel, Lowenstein Sandler. Separate litigation was brought on behalf of one of those troopers, Glen Johnson, who was wrongfully terminated. While both matters were pending, we won a motion for a preliminary injunction against enforcement of a State Police regulation requiring prior approval for dissemination of NJSP information and documents to the public because it restrained troopers’ speech in violation of the First Amendment. The discrimination case was ultimately settled with the assistance of Johnny Cochran, Barry Scheck, and Peter Neufeld in 2003. Appleseed’s “Journey for Justice” with the 13 troopers is detailed in Renée Steinhagen’s Testimony before the State Advisory Committee on Police Standards, on November 21, 2006.
Davis v. NJ State Police, (N.J. Super. 1999).
NJ Appleseed appealed and secured reversal of an order denying pro hac vice admission of its co-counsel, David Rose, in a suit challenging the NJ State Police admission test. Rose had been a lead attorney with the Civil Rights Division of the U.S. Department of Justice in the 1970s when the DOJ secured a consent decree regarding discriminatory hiring by the NJ State Police, events which had led to the development of the police exam at issue in the case. The trial judge believed that created an appearance of impropriety. The appeals court disagreed, saying the nine-year hiatus between Rose’s retirement from the DOJ and the filing of the pro hac vice application, a period during which he had represented the plaintiff NAACP on a regular basis, mitigated any concern that he was taking advantage of information obtained as a government attorney.
NAACP v. State of New Jersey, A-3357-97 (App. Div. 1998).
Appeal Brief on Pro Hac Vice Admission.
Newark Watershed Community Development Corporation (NWCDC)
Members of the Newark Water Group, represented by NJ Appleseed, filed a counterclaim against the Mayor and the NWCDC, after they sued the petitioners, who had utilized the Initiative and Referendum process to block privatization of the City’s water supply. Also sued was the City Council, which had adopted the petition. The counterclaim sought dissolution of the NWCDC, the quasi-public entity that maintained the city’s watershed property and operated the treatment plant, with its functions reinstated to the Newark Department of Water. The case was settled, and the NWCDC was dissolved.
This matter is also described on the Empowering Voters page under the Facilitating Local Initiative and Referendum Project.
In re Initiated Petition regarding a Proposed Save Our Water Ordinance, Docket No. ESX-L-6649- 12; A-4258-13 (Jan. 22, 2015).
NJ Appleseed is co-counsel in a lawsuit filed against Jersey City in Hudson County Superior Court on January 30, 2021, seeking to strike down a law, passed in violation of a community empowerment mandate, that clears the way for a 17-story, 420-unit development on land slated for greenspace. We represent the Morris Canal Redevelopment Area Community Development Corporation. More information about the case can be found on our website’s Community and Environmental Health page under the Sustainable and Equitable Local Development Project heading.
West New York
We filed an action in lieu of prerogative writ over actions taken by the Town of West New York to deny its citizens the right to elect, in a school board election, four new members of the West New York Board of Education. The matter was dismissed.
Francisco A. Ferreiro and West New York Concerned Residents v. Ricciel, Docket No. HUD-L-1919-14.
Brief in Opposition to Motion to Dismiss.
Governor and Legislature
Two Memoranda to Housing and Community Development Network and Fair Share Housing Center regarding a potential challenge to (1) Governor Christie’s taking funds from Neighborhood Preservation Non-lapsing Revolving Fund and (2) Legislature’s attempt to override “poison pill” provision in affordable housing law.
February 21, 2011 Memorandum.
February 28, 2011 Memorandum.
Borough of Freehold
In 2003, NJ Appleseed, together with the Puerto Rican Legal Defense and Education Fund, filed a class action alleging bias by the Borough for filing complaints for overcrowding and criminal trespass against persons of Hispanic origin, particularly day laborers gathered in public places to solicit work, as well as for unreasonable searches and discriminatory enforcement of the housing code. A consent decree secured through mediation was issued by the federal district court in 2007.
El Comité de Trabajadores por el Progreso y Bienestar Social v. Freehold Borough, No. 03-cv-6180.
November 13, 2006 Press Release Announcing Settlement.
City of Hoboken
People for Open Government went into court to enforce the anti-Pay-to Play ordinance it had initiated through petition and the ballot. The trial court dismissed the case for lack of standing, but NJ Appleseed took on the appeal, secured an Appellate Division decision reversing that decision and confirming New Jersey’s liberal standard with respect to actions brought by citizens and community-based organizations.
People for Open Government v. Roberts, 397 N.J. Super. 502 (2008).
We sought to compel the Attorney General to close the Hudson County District SPCA because of gross health violations. We were ultimately successful, but withdrew from the action in August 2010 when our client organization dissolved.
Hudson Animal Advocates and Jersey City Div. of Health v. Hudson County District SPCA, Docket No. HUD-C-59-08.
The Anti-SLAPP Project
NJ Appleseed has represented and continues to represent those who have been the targets of Strategic Lawsuits against Public Participation (“SLAPPs”) and has been an active proponent of anti-SLAPP legislation. SLAPPs are legal actions brought by business and corporate interests against ordinary citizens for exercising their constitutional right to speak out and petition the government on matters of public concern. Lawsuits are initiated or counterclaims are filed against opponents in the community in order to intimidate and silence them by burdening them with the financial and emotional expense of a legal defense until they retreat or give up their criticism. SLAPPs attempt to convert public issues into private tort claims, and the economic consequences and restrictive conditions that typically flow from permit or zoning proceedings are mischaracterized as private economic damages.
In addition to working with other organizations to promote anti-SLAPP legislation in New Jersey, NJ Appleseed has represented the following groups and individuals:
Pipeline Opponents–Pinelands Pipeline Litigation
In March 2017, Jane Jannarone, a member of the Pinelands Commission, sued 14 activists who posted critical remarks on her real estate business Facebook page about her and her vote approving the South Jersey Gas pipeline through the Pinelands. The remarks were disparaging and angry but protected under the First Amendment. NJ Appleseed, which already represented pipeline opponents the Sierra Club and the Pinelands Preservation Alliance, took on the defense of the activists and in October 2017, secured a stipulation of dismissal.
Jannarone v. Mendel, Docket No. CUM-L-206-17.
Attorney for Rail-to-Trail Activists–Harismus Embankment Litigation
NJ Appleseed defended Seattle attorney Charles Montange in a 2011 state court suit brought by a developer who was challenging Montange’s simultaneous representation of three plaintiffs in a federal lawsuit that sought to nullify the sale of the Harsimus Embankment in Jersey City to the developer. The Embankment is an elevated, stone-sided and long-abandoned railway bed that runs through the City’s downtown and the City, urged on by the Embankment Preservation Coalition, a local nonprofit advocacy group, sought to acquire the property for use as a public park. Montange represented the City, the Coalition and the Conservancy in the federal case, then pending in the U.S. District Court for the District of Columbia. The state court dismissed allegations that Montange had a conflict of interest and that the City was improperly and unconstitutionally subsidizing the Coalition and the Conservancy by paying Montange’s legal fees. Nevertheless, the judge refused to sanction the developer and its attorney despite clear evidence of malice and the SLAPP nature of the state suit.
212 Marin Blvd., LLC v. Montange, Docket No. HUD-L-2196-11, aff’d, A-583-10 (2012).
Milltown Community Preservationist Group–John C. Evans Project
In 2006, Valley National Bank sought approval from Milltown for a project to build a new bank. The plan entailed destroying the Forney House, an historic home built in the 1860s by the father of the town’s first mayor and operated as a medical-dental office since about 1907. A community group called the John C. Evans Project, after a prior owner of the house, opposed the application and after, it was granted, sued to overturn the approval. The bank counterclaimed for interference with contract, among other claims, and pursued the case , even after the Forney House was razed in 2009 and the new bank built. Following dismissal of the case in 2010, the group sought fees and costs as frivolous litigation sanctions against the bank on the basis that the counterclaim was a SLAPP suit. Finding no bad faith by the bank, the court denied the request. On appeal, NJ Appleseed filed an Amicus Brief supporting sanctions but the Appellate Division affirmed.
John C. Evans Project, Inc. vs. Valley National Bancorp, A-4850-09 (2010).
Union City Zoning Activist
NJ Appleseed represented Larry Price of Union City who for years has been trying to rein in development in his hometown by repeatedly filing prerogative writ actions that challenge approvals granted by the local board of zoning adjustment. A frustrated developer unsuccessfully sued Price, accusing him of extortion. Not only was the case dismissed, but we secured an Appellate Division decision in 2009 that awarded Price attorneys’ fees and costs because the lawsuit against him was acknowledged to be a SLAPP suit.
Maximus Real Estate Fund, LLC et al. v. Marotta and Price, A-5501-07 (App. Div. Aug. 13, 2009).
Dust was flying and settling near a worksite in Hoboken where Stevens Institute of Technology was blasting into the Palisades Cliffs in order to build a parking garage in 2002. Ronald Hine and Aaron Lewit, both with the Fund for a Better Waterfront, a Hoboken nonprofit that advocates for parkland along the Hudson River, investigated and discovered that the dust particles included naturally occurring asbestos. They complained to the Hoboken and Hudson County Health Departments, wrote letters to the editor and tried to get Stevens to take the necessary precautions to protect the workers on the site as well as the public. Their pleas were met by denials and a lawsuit accusing them of defamation. NJ Appleseed, together with the Columbia University Environmental Law Clinic, represented the Fund and got the action dismissed on summary judgment. The Appellate Division reversed on the ground that, with discovery not yet complete, summary dismissal was premature. After the NJ Supreme Court denied review, the matter was remanded and ultimately settled, with Stevens never admitting that it had filed a SLAPP suit.
Stevens Inst. of Technology v. Hine, A-3574-04 (July 31, 2007); Supreme Ct. Docket No. 61617 (2007).
In October 2009, a Criminal Trespass and Theft complaint, S-2209-000215-1715, was filed against Joseph Hannagan, a member of the Quinton Planning Board who had been appointed one month earlier by the Mayor as the Township Mining Inspector. Hannagan was charged with Trespass and Theft for taking a soil sample during a mine inspection, over the objections of the mining company president. NJ Appleseed intervened on behalf of Hannagan, and the criminal complaint was dismissed.
Memorandum of Law.
Community Activists–Upper Greenwood Lake
NJ Appleseed represented several residents of Upper Greenwood Lake, a private lake community in West Milford, who faced Criminal Trespass charges and other forms of retaliation after they organized to protest an increase in assessments and lack of privileges on the Lake. The Criminal Trespass complaint was dismissed against the individual who was a resident and State employee and the retaliation count filed under the New Jersey Constitution was settled.
The Common Interest Association Democracy Project
More than one million New Jerseyans live in common-interest communities—typically, clusters of townhouses, condominiums, cooperatives and other planned unit developments. Residents live under the governance of community associations—mini private governments that collect dues/fees/assessments from owners and control such common facilities as parks and parking and often set rules for many aspects of the community, including the appearance and upkeep of individual homes.
NJ Appleseed has worked over the years to ensure that the principles of democratic governance that apply to municipal action and decision-making do not stop at the gates of common-interest associations. Homeowners in these communities should enjoy the same transparency and access to association information that they are entitled to as residents of a municipality. The by-laws and rules of such associations should be designed to encourage members to attend board meetings and participate in the affairs of the community to the extent they are personally inclined to do so. NJ Appleseed helps those living in common-interest communities ensure that their boards act in an open and transparent manner, with the full participation of residents in the election of such boards and in the operation of their associations.
Legislative and Regulatory Efforts
On July 31, 2019, NJ Appleseed submitted comments on proposed regulations concerning the voting participation rights of residents in common interest associations. We requested generally that the rules, being promulgated under the Planned Real Estate Development Full Disclosure Act or PREDFDA, which governs common interest associations, be written as simply and clearly as possible to minimize ambiguity for boards and residents. We also made comments suggesting improvements to specific proposed rules. Final rules, which did not incorporate our suggestions, were adopted on January 6, 2020.
On March 5, 2020, NJ Appleseed Executive Director Renée Steinhagen testified before the Assembly Housing Committee in support of A-2480, which is intended to clarify that when PREDFDA was amended in 2017, it did not convert previously voluntary property associations into planned real estate developments or otherwise impose new responsibilities on property owners to pay assessments and other charges to such associations. The bill also declares null and void any lien recorded by such an association for non-payment of assessments or other charges imposed in violation of the bill’s provisions. The bill’s counterpart, S-908, which had already passed the Senate, was substituted for it in the Assembly and the legislation was signed into law on September 30, 2020.
In June 2020, NJ Appleseed weighed in on the Common Interest Ownership Act, A-4265/S-2661, in a letter to the primary sponsor, Assemblyman Herbert Conaway, Jr. The letter explained how the bill, based upon national model legislation failed to take into account and was inconsistent with existing NJ law in the area. If enacted, it would cause significant confusion in the area of municipal land use law and would shift association board control to owners in the case of master associations. The legislation passed the Senate on June 29, 2020 but had not advanced in the Assembly as of mid-July 2020.
“Homeowner Associations: Problems and Solutions,” published in the Rutgers Journal of Law and Public Policy, of Rutgers University School of Law at Camden (2007).
Representation of Residents
In addition to successfully petitioning the state to adopt guidelines governing financial disclosure and elections in common-interest associations, we have represented residents fighting for democratic governance in the following communities:
Tuckerton Meadows (Tuckerton)
On April 28, 2021, we wrote to the board of the Tuckerton Meadows’ Townhouse Association on behalf of Tuckerton Meadows United for Change, a group of townhouse owners in the 348-unit community who were concerned about the upcoming board election. It was originally scheduled for March 23, 2021 but for lack of a quorum on that date, was pushed back to May 25. The letter expressed concern that homeowners had not been informed of the new date; that those who were not in good standing and thus not eligible to vote had not been informed of that status nor notified that they had until 5 days before the election to regain eligibility by paying any arrearages or requesting ADR to dispute them, as required by statute and regulation; and other procedural deficiencies that deprived voters of anonymity. We requested that the election be rescheduled with proper notice, the opportunity to dispute arrearages, and procedures that preserved anonymity, and that, leading up to the new election date, certain legally protected campaign activities be allowed.
Morristown Court (Morristown)
We wrote to the Morristown Court Condominium Association on July 16, 2020 on behalf of a resident, Ms. Kimberly Krone, who had been told by the property manager to remove a Black Lives Matter sign from the window of her unit and that she would be fined if she did not do so. The stated rationale was the Association’s no-signs policy, assertedly based on its interest in maintaining aesthetics and uniform appearance, rather than the sign’s message. Our letter explained that the purported rationale misstated the Association’s restrictive covenants and its rules, which placed limits only on commercial speech, and that signage restrictions on expressive speech would be unconstitutional. We warned that if the demand to remove the sign was not withdrawn, we would seek a restraining order and if we prevailed, we would be entitled to legal fees and costs. Ms. Krone was allowed to keep her sign.
Homeowners at Cranberry State Lake United (Byram Township)
NJ Appleseed represents Homeowners at Cranberry State Lake United (HCSLU), a group of homeowners who are fighting an attempt by the Cranberry Lake Community Club to impose membership fees upon them based on a misinterpretation of the Planned Real Estate Development Financial Disclosure Act (PREDFDA). In particular, the Club is relying on a 2017 amendment to PREDFDA that was meant to protect homeowners in planned real estate developments who, by virtue of language in their deeds, are subject to assessments for the purpose of maintaining commonly owned or shared real property, by insuring that they have representation on the governing boards of the community associations that levy those assessments. The property owners we represent reside in areas that historically were part of the Cranberry Lake Summer Colony but do not constitute a planned real estate development within the meaning of the law. The Club is essentially trying to turn PREDFDA on its head by forcing our clients and other nearby homeowners to become members so that it can charge them membership fees. On March 2, 2020, we sent the Club President a letter explaining our opposition backed by an examination of historical records and an analysis of the law and informing the Club that if it takes any legal action, we will defend the case and also seek sanctions against it.
On October 7, 2020, we once again wrote to the Club, to object to its latest attempt (via an October 2 letter) to compel membership. We pointed out that legislation (S908) enacted just one week earlier, on September 30, strengthened HCSLU’s position and threatened to pursue legal fees and sanctions against the Club if it recorded liens against HCSLU members for nonpayment of Club fees.
The NJ Department of Community Affairs, which is charged with enforcing PREDFDA, advised the Club, in a December 28, 2020 letter, that the law does not authorize it to decide what constitutes a Planned Real Estate Development, or PRED, nor does it have any legal basis to threaten owners with liens or file such liens. A judicial determination is necessary and until there is one, the Club should cease representing and conducting itself as a PRED, wrote the DCA, adding that it stands ready to take any and all legal and administrative action necessary to ensure that the Club and other lake community associations do not utilize PREDFDA in an unauthorized and improper manner.
Lake Parsippany (Parsippany-Troy Hills)
On June 25, 2020, NJ Appleseed filed an administrative complaint with the NJ Department of Community Affairs (DCA) on behalf of the Lake Parsippany Voting Rights Group, an unincorporated group of homeowners who reside at Lake Parsippany, a 2,204-unit community in the Township of Parsippany-Troy Hills. In 2017, some homeowners sued the Lake Parsippany Property Owners Association for a determination of whether the community constituted a planned real estate development subject to the law known as PREDFDA (Planned Real Estate Development Full Disclosure Act). A judge held in 2019 that it was and thus the Association could impose a compulsory membership fee on all owners, even though membership had hitherto been voluntary, paid by those residents (and nonresidents) who wanted to use the clubhouse, beach and other facilities. The current dispute concerns the Association’s attempt, now that it can collect a membership fee from all, to impose a two-tiered fee and membership structure—one where those residents who pay a lower “fair share assessment” rather than the full fee must waive the rights of full membership, including the right to vote for and serve on the Association board. Among other relief, the administrative complaint asks the DCA to declare the this effort to deny voting rights to some members contrary to PREDFDA and to compel the Association to hold immediate board elections in accordance with the law and Association by-laws, which provide that all those who pay assessments can vote, run for officer or director and nominate candidates.
The Association filed a response on July 9, 2020, defending the two-tiered arrangement. On July 22, the Voting Rights Group replied, pointing out that the Association recently amended its by-laws to only allow board nominees in an upcoming Sept. 13, 2020, board election who are full members in good standing for 12 months or longer, which contrasts with the by-law requirement of 30 days’ good standing to vote. The Group’s letter requests expedited processing of the complaint to allow all owners to vote and nominate if they have paid an assessment within 30 days of the election, along with other, related relief.
The DCA responded to our Election Rights complaint with a February 9, 2021 letter advising the Association that its position denied members their statutory election rights and warning of formal action to compel compliance, including possible monetary penalties, if the Association persists in such conduct.
Sunrise Bay at Galloway (Galloway)
In early May 2019, we wrote to the President of the Board of the Sunrise Bay at Galloway Homeowners Association on behalf of Sunrise Homeowners United, a group of owners formed to seek improved governance of their homeowner association, with an emphasis on securing board meetings that are open to owners, fuller financial disclosure and fairer board elections that permit greater owner participation. The letter asks for amendments to the by-laws to achieve those purposes and comply with the Planned Real Estate Development and Full Disclosure Act (PREDFDA), a state law.
Concordia (Monroe Township)
NJ Appleseed represents Our Concordia, a group of homeowners who live in the Concordia adult community located in Monroe Township, which consists of 1,757 homes on 440 acres, with about 2900 residents. Our Concordia plans to run to several candidates for the Concordia Homeowners Association Board of Trustees in the upcoming election and is concerned about its ability to campaign in light of rules that ban campaigning or soliciting either at the Clubhouse or by going door to door. Other problematic restrictions prohibit window signs and the placement of political flyers on the Clubhouse bulletin board and require prior management approval to distribute flyers and other information via residential news delivery receptacles. We sent a letter to the homeowners’ association on April 26, 2019, informing it that the restrictions unconstitutionally burden residents’ expressional rights and asking that it refrain from enforcing them so that Our Concordia can leaflet, go door to door, talk to fellow residents on common property and place one sign in the window of each home and car. If the board does not agree to forebear, Our Concordia threatened to seek a temporary restraining order and if it prevails, to also seek legal fees.
Radburn (Fair Lawn)
NJ Appleseed is working with Radburn United, a large group of homeowners in Radburn, a private, unincorporated association within Fair Lawn that was founded in 1929 as one of the first planned communities in the United States. We are seeking to ensure that the Radburn Association amends its by-laws to be consistent with a state law known as PREDFDA (Planned Real Estate Development Full Disclosure Act, which is enforced by the NJ Department of Community Affairs, or DCA). The law was amended in 2017 to strengthen voting rights for those living in planned communities subject to governance by community associations and we also seek to ensure that the Radburn Association holds its next election in accordance with the amended law. Right before the May 2017 vote to amend PREDFDA, the Radburn Association board (which has since been reconstituted) adopted new by-laws to preserve its power by slowing the transition to a more democratically elected board and tried to hand 165 votes to a developer building a new condominium complex on property previously owned by the Association. In March 2018, in response to a complaint filed by NJ Appleseed on behalf of Radburn United, the DCA invalidated the new by-laws and placed a hold on the 165 developer votes until approved by either a court or the DCA.
In 2006, NJ Appleseed filed a complaint on behalf of a group of Radburn homeowners who were trying to ensure that the Association’s elections were held pursuant to constitutional principles regarding the right of all residents to nominate and elect their Board. In the trial court, the group got a SLAPP-like counterclaim dismissed against one of the plaintiffs who had served as the President of the Radburn Citizens Association and had filed a complaint with the DCA and secured a determination that PREDFDA, enacted subsequent to the creation of Radburn, applied retroactively to it, including its requirements regarding financial disclosure. The Appellate Division in 2010 affirmed the trial court’s decision but dismissed the plaintiffs’ claim that Radburn acted unlawfully in not allowing all owners the right to nominate and vote for the entire Radburn Board.
Moore v. Radburn Association, Docket No. BER-C-394-06, A-4284-07 (unpublished opinion in 2009).
Fox Chase II (Tinton Falls)
Since its inception, 40% of the units at the Fox Chase II condominiums in Tinton Falls were designated as affordable units. Despite that, no owner of an affordable unit owner ever served for any meaningful period of time on the Board of the Association nor ad the Board ever held public meetings. A group of affordable unit owners represented by NJ Appleseed sued in 2015, over the imposition of a special assessment that was not fairly apportioned among owners based on their percentage of ownership in the common property. NJ Appleseed, with Legal Services of NJ, was able to secure an order compelling the election of all five members of the Board. As a result, two affordable unit owners were elected to the five-member Board and are working to amend the Association’s by-laws so that they are consistent with the Planned Real Estate Development Full Disclosure Act (PREDFDA), including the requirement to have open board meetings. The Court also required the “new” Board to hold a new vote on the special assessment after a properly noticed board meeting.
Fox Chase Affordable Unit Owners v. Fox Chase II Condominium Assn., Inc., Docket No. MON-L-3479-15 (Order and Decision, Oct. 2017).
Carlton Towers (City of Passaic)
Carlton Towers is a high-rise 228-unit condominium in the City of Passaic. Starting with a complaint by a Board member who refused to sign an overly broad confidentiality agreement, we worked with a group of owners, including that member, to force a Board election to ensure greater transparency and responsiveness to the owners as a whole.
Concerned Residents for a Better Carlton Towers, v. Carlton Tower Condominium Assn., Docket No. PAS-C-0086-15.
Wood-Duck Pond Neighborhood (Bedminster)
NJ Appleseed filed an appeal on behalf of pro se defendant Karl Kovac, who lived in the Wood–Duck Pond Neighborhood in Bedminster. The Neighborhood Association had sued him to compel him to replace a pre-existing nonconforming door and then tried to get him to pay more than $45,000 in legal fees. The matter was settled successfully in 2015, since the Association by-laws did not authorize it to collect legal fees under such circumstances.
Wood-Duck Pond Neighborhood Assoc., Inc. v. Kovac, Docket No. A-3130-14.
Alexandria at Hillsborough Condominiums (Hillsborough Township)
We filed a Complaint on behalf of a group of owners who sought to hold the Alexandria at Hillsborough Condominium Association accountable with respect to financial disclosure, elections, and open board meetings. A court-supervised election was held pursuant to a Consent Order, and a new board was elected and a new manager retained.
Concerned Owners of Alexandria Assoc. v. Alexandria at Hillsborough Condominium Association, Docket No. SOM-C-12038-13 (Consent Order Oct. 13, 2013).
In 2021, we were contacted by Kevin Plunkett and Ron Carey, both candidates for the board in an election originally scheduled for March 25 but called off at the last minute and rescheduled for April 22. They were concerned that there had been no public announcement of the rescheduled date, despite PREDFDA’s 14-day notice requirement, and that this might deprive homeowners the opportunity to cast a vote. NJ Appleseed wrote to the board president on April 15 demanding, on behalf of Plunkett and Carey, that the election be rescheduled until 14 days after proper notice is given and that homeowners not in good standing be given the opportunity to rectify that status and participate in the election, as also required by law. Further, we reminded the association of other applicable law regarding the handling and counting of ballots and requested that steps be taken to ensure the ballots are counted in a “non-fraudulent and verifiable” way.
LeisureTowne (Southampton Township)
NJ Appleseed assisted a former board member and other owners of LesisureTowne, an active adult community in Southampton, in their efforts to prevent a new Board Chair and lawyer from changing the Restrictive Covenants to redefine who was permitted to vote in elections.
NJ Appleseed August 27, 2012 Letter to Board.
Flyer distributed to LeisureTowne Homeowners.
Common-Interest Homeowners Coalition
We provide legal assistance to the Common-Interest Homeowners Coalition, a non-profit formed in 1997 to address community living issues in New Jersey after a legislative task force found “poor governance and unfair operations” by common interest residential associations. Its stated mission is “to serve as the independent voice for homeowners in New Jersey residential community associations, to promote and strengthen democratic governance, and to advance the general welfare of homeowners.”
We have prepared and provided them with two memoranda written by Kevin Finckenauer, a pro bono intern who is a student at Rutgers University Law School in Newark:
1. Know Your Rights: an Overview of Common Elements and Limited Common Elements
2. Condominium Liens
Consumer Financial Justice Project
The Consumer Finance Protection Bureau, or CFPB, is a federal consumer protection agency created pursuant to the Dodd–Frank Wall Street Reform and Consumer Protection Act, which was passed in response to the financial industry abuses that caused the 2007-2008 financial crisis. It has been doing its job so well—cracking down on abuses in the mortgage, credit card and student loan industries—that business interests have relentlessly attempted to abolish and undermine it.
Consequently, NJ Appleseed has decided to participate, along with other national and state advocacy organizations, in the national effort to defend the CFPB against attempts to weaken its enforcement, supervisory and rule-making authority over financial lending institutions.
Amicus Brief Supporting Constitutionality of CFPB
In September 2018, NJ Appleseed, along with six other members of the Appleseed network, signed onto an Amicus Brief filed by the national Appleseed Foundation in CFPB v. All-American Check Cashing, an interlocutory appeal pending before the U.S. Fifth Circuit Court of Appeals. Our brief urges affirmance of a decision by the U.S. District Court for the Southern District of Mississippi that upheld the constitutionality of the CFPB. The defendants in the case, who were sued by the CFPB over alleged payday lending abuses, contend the agency is unconstitutional in its structure because it is headed by a single director removable only for cause. On March 3, 2020, the Fifth Circuit, in a precedential opinion, agreed with our position, and that of the D.C. and Ninth Circuits, that “the restrictions on the President’s removal authority under the Consumer Financial Protection Act are valid and constitutional.”
We hope that victory will not be short-lived. That same day, the U.S. Supreme Court heard oral argument in Seila Law v. CFPB, the Ninth Circuit upholding the CFPB’s constitutionality.
Comment on Proposed Changes to Remittance Rule
On June 28, 2019, NJ Appleseed joined with the Appleseed Foundation and Appleseed centers in five other states to comment on proposed changes to the Consumer Financial Protection Bureau’s Remittance Rule, codified at 12 CFR Part 1005. The Rule, adopted by the CFPB in 2010, under the statutory authority of the Dodd Frank Act, imposes requirements on companies that send international money transfers, or remittance transfers, on behalf of consumers. The Rule requires them to disclose the exact exchange rate, the amount of certain fees, and the amount expected to be delivered to the recipient. The CFPB has proposed raising the threshold for coverage by the rule from the current 101 or more transfers per year needed to qualify as a “remittance transfer provider.” The other change concerns an exception from disclosure requirements for banks, which has been in place since the rule was adopted and is slated to expire in 2020. Appleseed expressed the views that there is insufficient evidence to raise the 101-remittances-per-year threshold and that there no longer appeared to be a need to except banks from the disclosures. To the extent that banks might consider terminating their remittance services in the face of newly applicable disclosure requirements, Appleseed suggested they partner with larger banking organizations or nonbank money transmitters to act as service providers to the withdrawing banks’ customers.
Comment on Proposed Change to True Lender Rule
On September 3, 2020, NJ Appleseed, together with sister Appleseed centers in Texas and Nebraska, submitted a formal comment in opposition to a proposed federal rule that would expose residents of NJ and other states to the abusive practices of predatory payday lenders. It would do so by enabling so-called “rent a bank” practices by which pay day lenders, who are currently subject to the strict protections of NJ law, would be allowed to team up with federally regulated banks that would not be subject to state restrictions. The partnership with these rent-a-banks would override state law protections—most significantly, the criminal usury law, which caps the annual legal rate of interest at 30%—enabling payday lenders to charge rates well above that, possibly as much as 500%. According to data compiled by the Center for Responsible Lending, legal protections against pay day lending save New Jerseyans an estimated $193 million a year in fees, which would typically be borne by low-income and minority borrowers.
The rule change, proposed by the Office of the Comptroller of the Currency, prompted widespread opposition from hundreds of other groups and individuals, including NJ legislators as well as legislators from NY and Maine, whose own protections would be similarly gutted, NYC Council members, the ACLU, Center for Responsible Lending, Consumer Federation of America, the NAACP, Public Citizen, NJ Citizen Action and many more consumer advocacy and legal services groups.
Comment on Proposed Debt Collection Rules
NJ Appleseed was part of a coalition of 232 non-profit organizations from all 50 states and the District of Columbia that, on September 18, 2019, submitted a comment responding to the CFPB’s proposal to weaken consumer protections governing the collection of debts under the Fair Debt Collection Practices Act. The CFPB proposal would open consumers up to harassment, abuse and violation of their privacy by telephone, email, text and other means; obscure information about consumers’ rights; and protect debt collectors and collection attorneys who pursue debts after the legal deadline or with false, deceptive or misleading representations. The coalition, whose members include consumer, labor, religious, civil rights and social justice groups and six other state Appleseed affiliates, urged the CFPB to limit the number of phone calls per week, require consent before sending emails or text messages, allow people to opt out of electronic messages, hold debt collection attorneys responsible for misrepresentations, and prohibit the collection of “zombie debt.”
Financial Justice Campaign
It has also become apparent that the threat to the CFPB requires state Attorneys General and Commissioners of Banking to step up to the plate to protect consumers. Although New Jersey has a strong consumer fraud statute, there is little doubt that the Division of Consumer Affairs within the Office of the Attorney General is very weak, with minimal resources and scant history of enforcement.
Accordingly, in 2019, NJ Appleseed joined with NJ Citizen Action—which was already holding debt forums on financial industry abuses—in the establishment of a Financial Justice Campaign (FJC) to focus on enhancing the state’s capacity to protect consumers from abuses in connection with such matters as student loans; fraudulent or deceptive practices of for-profit schools; medical debt; and pay-day loans and other predatory lending practices. The other FJC members include the NJ Anti-Poverty Network, Fair Share Housing Center, AARP-NJ, NJ Policy Perspective, Housing & Community Development Network of NJ, Legal Services of NJ, and the CWA-NJ.
After Governor Phil Murphy signed Executive Order No. 91 in November 2019, establishing a Public Bank Implementation Board, the FJC also focused on seeking to influence the creation and operation of New Jersey’s Public Bank so that it can better serve the interests of the widest range of NJ residents and businesses.
Payroll Advance Legislation
As a member of NJ Citizen Action’s Financial Justice Table, NJ Appleseed opposes state legislation that would allow payroll advance aka earned wage access companies to operate in NJ without being subject to the state usury cap and other laws meant to protect consumer borrowers. Our shared efforts have included (virtual) meetings with legislators, legislative staff and consumer advocates, and an op-ed, co-authored with NJ Citizen Action, that was posted on the nj.com website on February, 16, 2021.
COVID-19 Related Efforts
Since the declaration of a state of emergency in NJ on March 9, 2020, due to the COVID-19 pandemic, NJ Appleseed, as a member of the FJC and acting on our own, has taken a number of actions to help those impacted by the pandemic to make sure they have access to testing and treatment for the illness itself and to protect them from the harsh consequences of the economic fallout. Our efforts include the following:
* On April 9, 2020, as part of the NJ for Health Care Coalition, we wrote to Gov. Phil Murphy, Senate President Steve Sweeney and Assembly Speaker Craig Coughlin, following up on prior legislative testimony regarding improved access to health care, to reiterate those concerns with added urgency in light of the COVID-19 pandemic.
* On April 17, 2020, NJ Appleseed wrote to NJ’s Governor, Chief Justice, Attorney General and Banking & Insurance Commissioner, asking that, in light of the pandemic and the resulting financial hardship faced by so many people, they take certain actions to protect consumers, including imposing a moratorium on car repossessions, halting debt collection actions and negative credit reporting, staying the enforcement of existing judgments and exempting coronavirus-related stimulus payments from garnishment by creditors.
* On February 2, 2021, NJ Appleseed filed a motion with the NJ Board of Public Utilities on behalf of NJ Citizen Action, which is seeking to participate in a BPU captioned In the Matter of the NJBPU Response to the COVID-19 Pandemic. That proceeding concerns the suspension of electric, gas, and water shutoffs during the COVID 19 state of emergency and how the arrearages that accrue during that period will be dealt with once the state of emergency is lifted.
* NJ Appleseed took action on the COVID-19 Financial Security for Consumers Act, S-2330/A-3908, which as originally introduced, did much of what we had asked for in our April 7 letter. It would have: protected consumers from negative credit reports resulting from financial hardship caused by COVID-19; barred new debt collection lawsuits and other collection efforts until 90 days past the end of the emergency period; delayed collection of medical debts for 180 days; shielded federal relief payments from seizure by creditors; required coverage of COVID-19 testing and treatment without cost-sharing by NJ Medicaid, NY employee plans and other plans governed by NJ law. It also authorized the Governor during a declared public health or other emergency to issue an executive order precluding the issuance of executions or other post-judgment process used to enforce a state court judgment, other than one from Family Court. We submitted written testimony in general support of the bill but prior to the May 7 hearings before committees in both houses, the bill was gutted by amendments that removed the general debt collection provisions in their entirety and created an exception that to the medical debt portion that effectively swallowed it. Accordingly, NJ Appleseed submitted an Addendum that updated our original testimony withdrawing our support for the bill and urging passage of the health coverage, executive order and stimulus protection provisions in two separate bills. In addition, Executive Director Renée Steinhagen testified before the Assembly Commerce and Economic Development Committee.