Property Rights Foundation of America®
Founded 1994

How Errant Golf Balls Threaten Private Property Rights

By John S. Marwell, Esq.
Mount Kisco, New York

Eighteenth Annual National Conference on
Private Property Rights
October 25, 2014
The Century House, Latham, N.Y.

Thank you, Carol, for that very generous introduction. Good morning everybody. Boy, we've covered an awful lot of things. All my favorite topics. The Public Trust Doctrine, we first ran into in the navigable rivers controversy. It comes from English law and it's not limited to parklands. If there's thought to be public access over property, that is interpreted as creating rights — undefined rights but rights — in the public. And we ran into that in the navigable rivers controversy. Some of you may have been here when we talked about that, probably seven or eight years ago. The case that went to New York's highest court because a lot of the public advocacy groups were lobbying hard in not only legislatively before DEC, before the New York State Legislature, and also provoked a test case that went to New York's highest court in which they were trying to establish that the public would have rights of access over privately owned water bodies and to change the definition of navigability in New York State law that would have created public easements for access. So, that was one topic. I think the question was asked about whether there would have been public hearings on the Willets Point situation and as Robert mentioned if there was a review process — I haven't been following the case so closely — but if they did create, if they did go through a Supplemental Environmental Review that would have required the same type of public hearings as would have been conducted under the basic environmental review. So, there would have been opportunities for members of the public to receive notice and to participate in the public hearings to put in whatever evidence they could. But as Robert pointed out there were a number of technical difficulties and deficiencies that were pointed out in the underlying Willets Point litigation. Interesting questions and I don't know where that case is going to wind up. Is that case on appeal now, Robert?

Robert LoScalzo: The parkland case?

Mr. Marwell: Yeah, the parkland case.

Robert LoScalzo: It's at the Appellate Division.

Mr. Marwell: Okay. Is that the Appellate Division First Department or Second?

Robert LoScalzo: First.

Mr. Marwell: First Department in New York. Okay. I'll mention why I think that's interesting. I'm going to mention Chief Judge (Judith) Kaye although a little bit later when we talk about errant golf balls.

And I do want to compliment Mr. Diederich on his very creative lawyering somehow to get that case into Federal Court. We will be citing your case next week because I do have a development that we've been trying to get approvals for for over ten years where our client has now spent in excess of $2.5 million reimbursing the town for the town's consultant and legal fees that he was obligated to pay under the local town law. And although you ran into consistent changing of the goal lines, we've run into sort of a — it's interesting — a refusal of the town board to take action and every two years you've got a new town supervisor coming into office, a change of political climate, and new ideas as to how our client's property should have been developed. Our client is already into this for almost $10 million in soft costs trying to get developmental approvals for an outdated corporate campus that happens to be the largest single taxpaying property in the community. And to Mr. Diederich's point, what could be better than to have an undeveloped parkland that's still on the tax rolls? Which is exactly what they had and they're continuing to try to get Mr. Diederich's case.

And finally, we talked about eminent domain. I believe before they file a map they have to have public hearing to establish public purpose and to go through an environmental review before they file a map, I think. So, there is a public process and there does have to be environmental findings before the eminent domain goes forward.

Having said that, how many people here play golf? Anybody play golf? Nobody plays golf! If you ever hit a slice or a…

Audience member: I can hit it into any body of water.

Mr. Marwell: Okay. You can hit it to any body of water. Does anybody here own property that's adjacent to a golf course? Okay. Well, whatever. I thought it would be of more personal interest to some of you, however, there's a case that is in the courts now… Oh. I forgot. There is one other thing I wanted to mention. Someone suggested that HUD ought to be eliminated. And if that's an interest to you, you ought to watch what's going on in Westchester County in that lawsuit that was brought by a not-for-profit group against Westchester County and which was settled back in 2009. HUD was brought in to mediate it and HUD has a very interesting agenda according to the county executive who inherited this settlement, the Westchester County Executive Rob Astorino. HUD's agenda seems to be to override all local zoning. Now, you all deal with local zoning. You know that New York State is a home rule state where villages and towns and cities control their own zoning within certain parameters. And it looks as if there's a federal agenda that is looking to be imposed on Westchester County which is to be used as a model nationally. Okay. And this is coming from HUD. So, this is a big deal. Okay. This is a big deal and there's a lot at stake. And the Westchester County Executive in many respects… Well, it's contentious as to whether Westchester has been complying with the terms of the settlement agreement that was entered into with HUD. There's a lot of argument as to a particular point and that is whether Westchester has sufficiently identified impediments to fair housing. There seems to be some sort of agenda that's trying to tie zoning restrictions into racial discrimination which Westchester has not found and it's kind of interesting. Part of that settlement appointed a federal monitor, a partner at a major New York City law firm, Jim Johnson, and he is now at odds with HUD over how that settlement agreement is being interpreted. So, this is a big case. It's a big deal. There's a lot at stake. And it's not just limited to Westchester County. This is going to be a precedent well beyond Westchester and well beyond the state. And it's coming, I think, from the federal administration.

At any rate, back to errant golf balls. And the reason I thought it would be of interest is because we have talked in the past about preexisting nonconforming uses and zoning regulations. We've talked about how the courts in New York State do not favor preexisting nonconforming uses. And for those of you who may not have been part of this, preexisting nonconforming use under zoning is a use of property that was perfectly legal under zoning regulations when it was established but the zoning regulations have subsequently been changed. So, it's a preexisting, that is the use was legal when it was established and it predated the new zoning restriction so it's no longer legal under current zoning and under general constitutional law you have the right — the owner of that property — has the right to continue that use going forward even though it wouldn't be permitted under today's zoning. As Mr. Diederich mentioned we're in an environment now by my observation for the last twenty-five or thirty years where municipalities and other regulatory agencies seem very comfortable in changing regulations to accommodate whatever their particular desire is. It happens regularly whether it's changing septic regulations, health department regulations, permitted uses under zoning, environmental regulations, steep slopes, wetlands, you name it. Different ways to change the law so that… I'm still waiting to see the first one of these regulations that increases the number of permitted uses in a property because they all seem to restrict and limit uses to which property can be put. But having said that, I'm concerned that this errant golf ball case can have significant adverse impacts on preexisting nonconforming uses throughout the state, not just limited to golf courses but well beyond golf courses.

Now let me take you through this case. And it's an Intermediate Appellate Division case in New York State. It was decided by a panel of judges, the Appellate Division, Second Department that sits in Brooklyn. And the next step in this case would be, if you can get it there, to take it to the Court of Appeals, New York's highest court. New York's highest court, the Court of Appeals, takes fewer than five percent of the civil — that is the noncriminal — cases that the litigants seek to bring to that court. It's very hard to get a case to that court. But when we get done with this discussion I think you'll see why I personally think this is a very important case and could have a very dramatic impact on property rights and constitutional rights around the state if it is not reversed by the Court of Appeals. So, more on that.

Let me talk to you about this. This is a case that emanates from central Westchester. The Quaker Ridge Golf Club was founded in 1916. It opened as an eighteen-hole golf course in 1918. It was designed by a prominent golf course architect, Mr. Tillinghast, who has designed famous golf courses around the country. The Quaker Ridge golf course has operated almost continuously since 1918 with only minor modifications to the layout of this classic signature course. It's been perennially ranked by Golf Magazine as one of the top one hundred courses in America. It has been the host of the Walker Cup, which is the amateur equivalent of the Ryder Cup as well as numerous regional and national tournaments. It will hold a future Curtis Cup which is the equivalent of the Walker Cup for females. So, we go back to 1918, a continuously operating golf course.

The people who sued, the plaintiffs, Mr. and Mrs. Behar, own one of a number of homes which abut the golf course in the village of Scarsdale. Their homes were built pursuant to various municipal approvals by the Village of Scarsdale and others which were granted from 1999 to 2004. Okay. So, you've got a golf course that was founded and has been operating continuously since 1918. You have people who move next to a golf course for all of the reasons. It's beautiful, you've got a nice view, you've got scenic vistas, you've got no development. And they move in next to a golf course in houses that were approved from 1999 to 2004.

Now, we talk about zoning all the time, right? Among the conditions of the approvals for this housing development were imposed by the Scarsdale planning board. Number one: The applicant, that is the developer, would be required to submit detailed plans identifying the trees to be preserved, as well as providing a plan for additional plantings as deemed necessary by the planning board. Okay. That's one of the conditions of approval for the developer to build houses adjacent to the golf course. Number Two: No vegetation along the common boundary with the Quaker Ridge Golf Club can be removed without submission to and approval by the planning board of a detailed tree inventory locating all trees within fifty feet of the property line, a detailed tree preservation plan and approval of the tree preservation and planting plan for the lots along the boundary. That is the boundary from the house and the golf course. A tree inventory plan submitted in accordance with municipal approvals — with the municipal approvals — identified those trees which would remain as part of the development. They identified — they tagged — the specific trees. These specific trees were acknowledged to be trees which provided screening for the property, the specific home, and which helped prevent errant golf balls from reaching the plaintiff's property, the plaintiffs being the homeowners. The developer passed down all of these conditions to the future owners of the property as required by the planning board and filed a so-called "declaration of easements and restrictions" filed with the Westchester County Clerk's Office which stated the following:

"There shall be no vegetation removed along the common property line without the submission and approval of a detailed tree inventory locating all trees greater than four inches in diameter at a point fifty-four inches above the ground within fifty feet of the western property line of the property. A detailed tree preservation plan and approval of a tree preservation and planting plan for the lots along the common boundary line with the Quaker Ridge Golf Course."

Pretty straightforward, right? Pretty detailed. Sounds as if there was a municipal attempt to address what was acknowledged to be an issue, errant golf balls coming off the golf course that might encroach upon the homeowners' property. So, what happened next? Well, the plaintiffs purchased the home which abutted the fairway, abuts the pit fairway of the second hole of the golf course in November 2007. Okay? By Quaker Ridge's design there was a screen of trees between the fairway and their property. The plaintiffs — the homeowners — acknowledged that they specifically sought out a house which adjoined a golf course. Their previous home had adjoined the Wykagyl Golf Course in New Rochelle, also in Westchester County. So, they intentionally moved next to a golf course. From the time they purchased the home they enjoyed the full use of their backyard, observing only occasional golf balls on the perimeter of their property.

In January 2008, they had a hearing before the Scarsdale zoning board regarding their plans to construct a swimming pool in their yard. Quaker Ridge, the golf course, objects to the plan because it would violate the earlier approval that had been given regarding the preservation of vegetation which protected the property from errant golf balls. Well, the golf club also specifically noted one particular tree that had a stress crack and required attention. Well, the homeowners' representative before the zoning board agreed with that, promised that the plaintiffs, that is the homeowners, would keep and add vegetation to alleviate concerns about errant golf balls. The plaintiff's plans for the installation of the swimming pool also called for removal of one of those key trees that provided the screening for these errant golf balls. The golf club objected to the removal of that tree as violative of the original tree preservation plan. But, nevertheless, Scarsdale granted permission to remove that tree as part of the installation of the homeowners' swimming pool. During Spring and Summer 2008, they constructed the swimming pool and a swing set for their children.

Mother Nature intervenes in June of 2008. A storm brought down a number of the tall trees on the periphery of the golf course on or near the property line, including one of the key trees. As a result of the missing trees, the number of golf balls landing on their property increased. So, the plaintiffs, that is the homeowners, erected a fence and a twenty-five foot safety net to stop the incursion of golf balls on their property. The Village of Scarsdale denied them permission to keep the net as it was a structure and it was too high so they wanted it removed. The homeowners then erect a stand of trees which were not as tall and as fulsome as the trees that had previously shielded the property. And the new trees proved ineffective in shielding the property from the errant golf balls. Quaker Ridge then erects a forty-foot-high net which also proved ineffective in preventing the golf balls from landing on the property. So, what happens next? The homeowners sue Quaker Ridge in April, 2010, claiming private nuisance — we'll come back to that — trespass, and negligence and they sought a preliminary injunction to enjoin Quaker Ridge from using that hole of their golf course, which has been there since 1918 and in continuous use. And these are folks who moved next door to a golf course because they wanted to live next door to a golf course, and they were on notice of a tree preservation plan, and they took down the trees on their own property to put a swimming pool and a swing set in their backyard.

So, that comes on before Supreme Court Justice in Westchester County, a motion for preliminary injunction. The judge denies the application saying that the plaintiffs, that is the homeowners, had failed to demonstrate irreparable harm. He further held that the balancing of the equities, okay, weighed against the granting or weighed against the granting of injunctive relief since they had deliberatively, deliberatively, sought to live next to a golf course and they failed to replace the trees. Okay. So, common sense seems to be prevailing a little bit so far. These folks come back into court with additional information in July of 2011, back before Judge Murphy. At that point Judge Murphy takes another look at it and he says the court must weigh the inconvenience and harm inherent in the proximity of their property to the second hole against the inconvenience and harm which would attend traditional relief that would preclude play at the second hole. The court further held that the golf balls is not a result of actions or inactions by the golf course. So, he concluded that all of this even though the protective measures that were taken did not tip the balance in the homeowners favor when viewed in light of their own actions of taking down the trees. So, again he denies the new motion for preliminary injunction and recognizes that it was largely due to the homeowners' own actions that they now have this problem with golf balls landing on their property. And the judge applied a balancing test which assumed that the plaintiff, the homeowners, had deliberately moved next to a golf course. They deliberately removed trees. They neglected to replace other trees which were naturally damaged or removed by acts of God and that the homeowners had a burden to protect their own property which was at least equal to the responsibility of Quaker Ridge, the golf course, to not unreasonably intrude upon the quiet enjoyment and these folks ability to quietly enjoy their property. So, he denied the preliminary injunction a second time.

Now, the plaintiffs go back to court and there are motion and cross motion for summary judgement which is: We don't need a trail. The facts are so clear, the law is so clear. Give us judgement, please, Your Honor. And it comes before another Supreme Court judge in July, 2012, Judge Giacomo he denies the homeowners' motion for permanent injunction and for summary judgement, grants Quaker Ridge's motion for summary judgement. Basically, okay, golf course, you're right. The same reasons that Judge Murphy had earlier denied the homeowners' request for relief. Again, Supreme Court says plaintiffs had deliberately purchased a home next to the golf course, neglected some of the trees that provided cover, deliberately removed others, failed to replace them with adequate screening, and saying if they do not want golf balls falling onto their property then they can't sit idly by and ignore the known risk of the sick tree falling and taking down additional trees. They can't create their own problem and then complain about it. It's the plaintiffs, that is again the homeowners, that have placed themselves and their children in harm's way, not the golf course. Common sense, at least in my humble opinion, is still common sense.

The theme running through, now we've got three orders of the Supreme Court from Westchester County from two different justices holding that the plaintiffs as property owners who intentionally moved next to a golf course, intentionally removed trees, had some responsibility at least for taking measures that would ameliorate the situation.
So, the homeowners, not yet satisfied, file an appeal to the Appellate Division Second Department which is the appellate court that has the responsibility for Westchester, Rockland, Orange, Putnam, Dutchess, I think Nassau and Suffolk, I think. And the Appellate Court, four judges on the Appellate Court, hear the case. And they reverse the Supreme Court. And they say on a private nuisance claim against Quaker Ridge, held that Quaker Ridge has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on these plaintiffs' property producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient. Strike One. Strike Two, and this one is as serious or more serious for precedential purposes on a trespass cause of action held for the homeowners because plaintiffs' submissions, that is the homeowners' submissions, demonstrate that golf balls have invaded their property with such frequency and over such a long period of time without Quaker Ridge taking steps to sufficiently abate the situation so as to amount to willfulness on the part of the golf course against this homeowner.

The court further held that plaintiffs, that is the homeowners, established that Quaker Ridge breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location in the form of play or in the erection of protective devices as a safeguard against injury to the plaintiffs' property.

So, now we have the Appellate judges who disagreed with the Supreme Court on two crucial factual findings holding that the plaintiffs, the homeowners, were not bound by this tree preservation plan that had been imposed by the Scarsdale planning board and which had been handed by the developer to them as homeowners, that the golf club did not establish that the homeowners' conduct in failing to preserve the trees on their property was the sole proximate cause of the condition underlying their claims of nuisance trespass and negligence.

The Appellate Division granted the homeowners' motion for a permanent injunction against the golf course preventing Quaker Ridge from using the second hole "in a manner which constitutes a private nuisance and causes a trespass upon plaintiff's property."

Huh? But that's what this court held without a trial and just simply reversed the three decisions of the Supreme Court and found that the equities balanced so significantly in favor of the homeowner and against the golf course that it shut down that hole and also directed that the case go back to the Supreme Court for a trial on the issue of damages. Money damages, okay, against the golf course for the homeowner.

Now, the first thing that you do in a case like this is you make what's called a motion to reargue the case. You ask the Appellate Division to consider its decision saying. "Gee, we really think you made a mistake. You misapprehended a question of fact or a serious fact or law here. Please take another look at this."

Audience member: They like that.

Mr. Marwell: Yeah, the likelihood of success is not high in a motion like that. Having said that, the other piece to that is you ask alternatively if you're not going to reconsider your decision, please let us make a motion. Please let us go to the Court of Appeals. Okay. That's the highest court of the state. Again, very, very difficult to get a case before that court.

Now, who did the golf course bring in to make that motion? Three guesses. Judge Kaye. Yes, okay. And brought in Skadden, Arps on behalf of the golf course. And the co-council was none other than a retired justice from this court, the Appellate Division, who's now in private practice. And I gave you all in the packet, the materials that you got. You saw the summary decision, motion to reargue denied, motion for leave to appeal denied, and one other one which just makes me laugh. Okay, the Appellate Courts typically encourage amicus briefs or "friend of the court" briefs from third parties who are not parties to the case but who have something new to bring to the table to help the court to put some light on it. Metropolitan Golf Association filed a motion to the court for request to submit an amicus brief and ordinarily, at least in my experience, the Appellate Courts welcome amicus briefs. Motion for relief to submit an amicus brief denied. They didn't want anything more to do with this case.

So, the case now is back. They're going back to the Supreme Court because they have to have a trial on the issue of damages before the case is finally decided. And then they'll have to start going back up again through the Appellate Courts. But think about this for a second. People who intentionally move next to a property that's been used for specific purpose legally since 1918, they have all the advantages of moving next to a golf course, as they see it, because that was something they wanted to do and they did intentionally. They take down trees. They ignore this tree preservation plan that had been imposed on the property. The municipality refuses to allow the big netting to go up because it's too high. These people applied for… or I guess the golf course. I don't remember if it was the golf course or these people who applied for a variance which was denied to put the bigger netting up to catch some of these golf balls.

So, why am I taking the time to talk to you about this? First of all it makes you scratch your head, this decision. But not only in Westchester where there are a lot of golf courses and we've been hired by a golf course which is now being threatened by one of its neighbors, another golf course that's been there over a hundred years, threatened. The same exact situation except there have been more amelioratory measures put in place by the club that we've been representing. But certainly that would endanger, and there are a lot of golf courses in Westchester, public golf courses and when you talk about the expense that's involved… One of the other golf courses, Winged Foot, got sued. They wound up having to buy the house of the neighbor that had successfully sued them. I don't know what they're using it for staff housing or they put a restriction on it and then resold it but the magazine articles that we circulate was speculated that they were already into that for over $400,000 in legal fees just defending the case. What happens to the public courses when these cases start coming in?

But I think it goes well beyond golf courses. Our firm has represented a lot of property owners who own preexisting nonconforming uses. As society changes, you know, what's legal under zoning changes and evolves as well. We represented someone who his family had owned a quarry and it had been in continuous operation since 1922. Now, people bought houses in the neighborhood adjacent to the quarry that they probably bought pretty cheaply because of that use and they immediately started complaining about dust and noise and all of that and managed to shut the quarry down. Because these are political decisions. It's a public process. It's not a logical, qualitative business-like process. It's a political process. And these are local officials who may or may not have any expertise in these areas. Who may or may not recognize or acknowledge private property rights but they're going to react to the voters because if they don't react to the voters they're going to wind up as former officials.

So, we've also seen that with a contractor's yard where the neighbor's ganged up and tried to close down a contractor's yard that had been there since well before their housing development had been built. In fact, in one of the small ironies, the contractor's yard had been the staging area for the construction of that housing development.

Let me see what other kinds of…

Audience member: Hog farmers.

Mr. Marwell: Agricultural uses. We had a client who had a farm in the middle of a residential zoning district. And the neighbors were screaming about the noise and the smell and all of that even though the farm had been in continuous use and predated the residential… certainly the people who had bought their homes knowing that that use was there and enjoyed the benefit of the economic advantage of buying and then put the political pressure on.

So, I am concerned about this case. I think it's going to be in the courts for quite a while and I think that it does have potential impacts, again, far greater than golf clubs and golf courses in which I think there's a significant impact. And you saw in the materials, one of the articles that we submitted was by Brad Steele who was the general council for the Metropolitan Golf Association. So, this case is getting notoriety well beyond Westchester, well beyond New York State. It's a concern for this industry, obviously an industry that's not growing right now. I also think that this has far broader implications. This whole idea of a trespass theory that when you move next to a golf course and you can complain that when errant golf balls go on your property that's a trespass on your property. I'm hoping that there will be a different view, a different and higher judicial rationale imposed on this kind of situation because I'm very concerned that this kind of decision, which right now is really only binding in the geographic area that I mentioned before, but it's going to be strong precedent in other places. And I'm concerned that this could further encroach upon the constitutionally protected rights of people who own properties and enjoy the benefit of preexisting nonconforming uses. Again, uses that were perfectly legal when they were established but have since been zoned into illegality. And the courts on the one hand are supposed to protect those rights and do to some extent, but the general philosophy in New York is not to encourage — the judicial philosophy — is not to encourage preexisting nonconforming uses. And this is another nail in the coffin, as I see it. Yeah?

Audience member: Under sustainable development, my favorite topic, golf courses are considered unsustainable.

Mr. Marwell: Well, there's all kinds of issues about Clean Water Act implications, about fertilizers, pesticides on golf courses. It's an industry that's not growing right now.

Audience member: Beyond the drastic Draconian results in closing in closing down that hole was no less than they [Unintelligible] to tree up that area.

Mr. Marwell: Well, trees were put in and that's, I think, going to be one of the key questions in these cases as to what ameliorative measures did the golf course take to try to mitigate impacts. In this particular case they did put up a net. There was an attempt to put up a bigger net. The municipality said, "No, you can't." There were trees planted…

Audience member: [Unintelligible] to tree it up they're supposed to be putting [Unintelligible] a manmade structure.

Mr. Marwell: There were trees planted but when you lose an eighty-foot high or a hundred-foot high tree you can't replace it.

Carol LaGrasse: Doesn't this case also make zoning conditions not transferable to a new property owner? Doesn't it make a threat to all the planning in the United States and those permit conditions?

Mr. Marwell: You know, it is puzzling on so many different grounds, Carol. That's why I'm hoping that the Court of Appeals will take this case and take another look at it and at least modify this decision. Because I'm not sure what else the golf course in this case, what other actions it could have taken. It put everybody on notice. There was a tree preservation plan. It was imposed. The developer passed that. It was recorded in the county clerk's office so the owners knew about it. The owners intentionally go back to remove some of these trees they ask and they get municipal permission after the golf course says, "Don't do it. Don't do it. You're violating the tree preservation." It just makes you scratch your head. Mr. Diederich?

Mr. Diederich: The comment I have is I will do anything to avoid the Appellate Division Second Department including going to federal court because I feel I cannot get… that the judges there are so bad. And part of the problem is our system in New York of selecting judges. So, you're wondering why the law was ruled this way and I say, "Look at the judges and how they rule." My experience is they often, way too often, rule so wrongly and that that's the bigger problem, really.

Mr. Marwell: I think that you get… I'm not suggesting that anybody should judge but a lot of the state court judges come up through the system so that land use, which is a completely different mindset, it's not always a rational process, it almost becomes accepted by people that have come up through the system because they've seen it so much. The federal judges don't. They're appointed by Congress, by the President and I've seen several cases where federal judges, and it's very tough to get a land-use case, as Mr. Diederich said, very tough to get these cases into the federal courts. The federal judges don't want to hear them. They're local matters and they'll find any reason, any way, to get these cases decided in the state courts. Occasionally, you can get one into the federal courts and what we've seen is when these cases, when the right cases come before the federal judges they are appalled at what has happened. And they will throw the book at the municipalities from time to time. Something that I haven't seen happen really in the state courts. Sir?

Audience member: You mentioned homeowners. Were they functioning as individuals or were they in an association?

Mr. Marwell: One family. A single homeowner.

Audience member: But had the developer formed a homeowners' association.

Mr. Marwell: I don't know the answer to that.

Audience member: That's important.

Mr. Marwell: It was simply… I don't know whether there was a homeowners' association.

Audience member: Their rights are different.

Mr. Marwell: But this was individual homeowner.

Audience member: But they only have certain rights as individuals. If they're members of the association…

Mr. Marwell: They've got more rights now.

Carol LaGrasse: Well, I have to thank you…

Mr. Marwell: My pleasure, Carol. My pleasure.

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