Local Law Blogs

HOA Wins Lawsuit and is Allowed to Maintain it's Gates and Controlled Access in Relation to its Public Roads

By David J. Byrne

Many, many years ago the developer of a New Jersey HOA secured township approval of a development plan by which market rate single family homes would be constructed along streets intended to be public.  Thereafter, this developer obtained approval from the township to change the community into an active adult community.  Notwithstanding the change to an active adult community, the roads remained designated as public as no amended site plan or revised developer's agreement or otherwise was made, filed or recorded.  This developer did however amend its subdivision and site plan to include a gatehouse and gate arm control devices at the community's main entrance and rear entrances.  The developer advised the township at the planning stage that the roads would be public, with this controlled access, but that the public would not be denied access.  The developer eventually represented in the Public Offering Statement that all streets would be municipal roads to be owned and maintained by the township.  It also included in the POS a statement that it made no representations as to the public's right of access.  Despite the township's approval of this, and despite the developer's completion of the roads and the community overall, the township refused to accept the roads for dedication.  More specifically, the township advised the community that so long as the gatehouse and gate arms were present, it would never accept the roads for dedication; that is, make them public.
 

The association thereafter sued the township seeking an order compelling the township to accept the roads for dedication.  The developer was joined as a party in the case and ultimately joined the association in its attempt to force the township to accept the roads for dedication.  In challenging the township, the association relied upon several documents relating to the community's creation and approval by the township including, township resolutions, the memos of township-hired professionals and minutes of various township meetings.  During the planning stage, township officials had even commented how this controlled access would be helpful to stem public attempts to avoid traffic lights and 'cut through' the community to access the high school, etc.   Over the township's objection, the court ruled that the association's maintenance of these gate arm control devices and retention of the gatehouse would still constitute 'public access'.   The court did not even object to the association's contemplation of a surveillance system intended to capture the license plates of vehicles entering the community.  In the end, the judge ordered the township to accept the roads for dedication.

Full post as published by New Jersey Law Blog on April 21, 2010 (boomark / email).