A Queensbury couple are taking their homeowners association to court, claiming the group trampled their free-speech rights by fining them $5 a day for putting a political lawn sign in their yard during election season.
The lawsuit, filed last month in state Supreme Court in Warren County by Peter and Margaret Jasinski, continues a two-year fight the couple have had with the Hudson Pointe Homeowners Association over its sign restrictions.
The Jasinskis live in a 90-home development off Northway Exit 18 near the West Mountain ski area that contains cul-de-sacs, well-manicured lots and amenities like tennis and basketball courts. Called Hudson Pointe, it is governed by a set of bylaws that prescribe such things as the kind of outdoor clothesline that may be used (umbrella-style only), what size boat may be stored outside and where, and the color and location of any awning installation.
The bylaws also prohibit signs “or other advertising device of any nature” from homeowners’ lots — including for-sale signs — unless approved by the association’s board of directors.
The Jasinskis, though, contend the bylaws are silent on political signs.
“While the Jasinskis’ home is subject to certain restrictions enforced by the association, the alleged restriction at issue does not put the Jasinskis or any other Hudson Pointe homeowner on notice that political signs, as opposed to any other signs, are banned by the association,” their lawsuit contends.
The couple want a judge to rule that the association has no authority to ban political signs in the development.
Lien on house
They also ask that the fines assessed against them — totaling $1,265 as of Aug. 21 — be dismissed, and that a lien placed on their property because of the unpaid fines be removed.
“The Jasinskis are the subject of association fines and penalties for doing nothing more than placing a single political sign near the roadway in front of their home during election seasons,” the lawsuit states.
“The association’s political sign ban violates the long-standing public policy favoring the free exchange of political ideas,” it claims. “These principles are not merely set forth in statute, but in the highest bodies of law in this country and state: the United States and New York State constitutions.”
Hudson Pointe was built by The Michaels Group of Ballston Spa on some 80 acres off Corinth Road. It is part of a larger, 211-acre planned unit development carved from property owned by Niagara Mohawk Power Corp. and approved by the town of Queensbury in the late 1990s.
Some of the acreage became the Hudson Pointe Nature Preserve, which includes walking and hiking trails adjacent to the housing development that wind toward the Hudson River to the east.
Buyers in the housing development automatically become members of the homeowners association and contribute to the upkeep of common areas and amenities through an annual maintenance assessment paid to the association.
The Jasinskis’ lawsuit claims the association began enforcing a ban on political signs in the development in May 2010, when it began assessing fines against the couple for putting out a political lawn sign.
Attached to the lawsuit as an exhibit are photographs Peter Jasinski took in the development that show lawn signs advertising future or completed driveway paving and landscaping work.
“[T]hese signs are freely allowed by the association without restriction as to size, style, color, location or duration of use,” the lawsuit states. “Political signs are the only signs banned by the association.”
Also included as exhibits are letters exchanged since 2010 among the Jasinskis, the association board, and attorneys representing the two sides.
The letters display growing acrimony by the parties.
In one, Whitehall attorney Harold Nicholson Jr. introduces himself as having been retained by the homeowners association. He tells Peter Jasinski that “you are incorrect” in assuming that displaying a political lawn sign is a protected right under the First Amendment to the U.S. Constitution.
“What you may not understand is that speech that is regulated by the government is protected,” he writes in October 2010. “Speech that is regulated by a homeowners association per a contract that you yourself have entered into is not protected speech under the Constitution.”
In another, in April 2011, Nicholson indicates that the association has decided to forgo the fines against the Jasinskis.
But by November that year, the fines returned, according to the lawsuit, and Peter Jasinski complains in a letter to the association’s president that the board is “again … overreaching [its] authority” and harassing the couple. “Your use of restrictions to bully some residents is illegal and needs to stop,” he writes.
The lawsuit claims that the couple “attempted to avoid litigation one last time” through an August 2012 letter sent by their attorney, Leah Everhart of Miller, Mannix, Schachner & Hafner in Glens Falls.
No response to the letter was received, according to the lawsuit, although a billing statement sent to the Jasinskis less than a week later notes the $1,265 in fines due.
“Throughout the exchange of correspondence spanning approximately two years, the association fails to identify a single justification for banning political signs,” the lawsuit claims. “It merely concludes that political signs violate the ‘feel’ of the [bylaw] restrictions.”
No answer to the lawsuit had been filed by the association in the Warren County as of midday Friday.
An attempt to reach Nicholson by phone and email to see if he still represented the association and whether an answer was imminent was unsuccessful. Everhart also did not return a message left on Friday.
GAZETTE COVERAGEEnsure access to everything we do, today and every day, check out our subscribe page at DailyGazette.com/Subscribe
More from The Daily Gazette:
Categories: Schenectady County