Month: March 2007

The March 30, 2007 issue of the Arizona Capitol Times contained the following story:

It now costs $2,000 for members of homeowners associations to file a complaint with the Department of Fire, Building and Life Safety in the Office of Administrative Hearings. The fee used to be $550.

“The intent of H2824 was to give homeowners an affordable way to file against an HOA without the costs of going to Superior Court. This increase completely defeats what the Legislature tried to do,” Staropoli said.

The intent according to Cliff J. Vanell, director of the Office of Administrative Hearings, was to “streamline the process to make it more accessible to homeowners, and make the hearing process work in a timelier manner.”“

The problem lies in that there is no state money appropriated to pay for HOA cases heard by an administrative law judge. The program was supposed to be self-sustaining and not cost taxpayers anything, but the $550 filing fee just wasn’t covering the man hours each case was averaging,”

“I feel real bad about the increase (in the filing fee), but the bottom line was I had to do something, and it is within the powers of the director to raise the filing fee and so that is what I did,” Barger [Director of DFBLS] said.

Facts:

1. The authority granted the Director by the enabling statute simply said, “[P]ay a nonrefundable filing fee in an amount to be established by the director.”
2. The requirement for cost-effectiveness to be determined by the Director is not contained in any statute, but the Joint Legislative Budget Committee was to review the fee within a year with the guideline of the new adjudication to be self-supporting. Section 12 of the law states, “The joint legislative budget committee shall recommend a level of filing fee appropriate to ensure the hearing officer program is fiscally sound and self-supporting.”
   
3. At the Nov. 15, 2006 JLBC meeting, the committee recommended the fee remain at $550 for 2007 pending the development of meaningful cost data.
4. Under Arizona’s APA, fee setting is subject to rulemaking statutes that require public notice and input, neither of which occurred.

 In short, while the statute gave the Director the right to set the fee, which could be easily interpreted to mean only the initial fee, since JLBC was to review the costs, APA rulemaking statutes tells the Director how, which he violated. 

Statistics:  

1. Over 78% of OAH cases do not pay a fee!  HOA complaints would amount to a mere 1.7% of all complaints.  Only 24 complaints were submitted before the fee was increased; last year, there were 7,360 OAH complaints filed.
2. The average cost per case last year, for all OAH cases was only $158.41, far below what 78% paid and below the initial $550 HOA fee.
3. The pre-increase submission ratio was 1.1 complaints per week; the post-increase ratio is .6.
4. With 13 decisions rendered to date, homeowners won 6, the HOA 5, and two were split This result rebuts the special interest claims that HOAs are doing a great job, and its only a handful or troublemakers who don’t know how to get along who are causing these handful of problems.  Is this the reason for the outrageous fee increase, to bury the truth?

Why are homeowners in HOAs being denied their due process rights and being clearly subject to separate and unequal laws?   For more information see additional editorials:   

 

In a split vote, the Arizona House Homeland Security and Property Rights (HSPR) committee voted on March 26, 2007 to kill a bill aimed at preventing HOAs from regulating parking on public streets.  By doing so, it saw no problem with the abuse of constitutional due process when HOAs fine a homeowner for a stranger’s car parked out in front: a fine that is allowed to be a lien against an innocent homeowner. The failure to restrict the regulation of public streets for parking opens the door to the further private HOA government regulation of public streets, an unconstitutional delegation of police powers to a private organization.

 

Even the mention of “bills of attainder” by a HOA president fell on death ears, apparently neither the HOA president nor the committee members understood what a bill of attainder is, and that it’s prohibited by the US Constitution.  Neither, apparently, did the lobbyist for the national HOA trade group, the Community Associations Institute (CAI), who opposed the bill because it somehow stood in the face of the voice local government.  Say what?  HOAs are not public governments; they are private contractual governments operating outside the Bill of Rights and 14^th Amendment restrictions on state actions.  CAI’s position on this bill echoes its amicus curiae brief warning of an “unwise extension” to the NJ appellate court in the Twin Rivers HOA constitutionality suit when it wrote, “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members ….”

 

Read the complete editorial at homeland.

 

 

An article appears on the azcentral.com website (owned by Phoenix Newspapers, Inc, in turned owned, along with the local NBC TV news, by media conglomerate Gannett Co., Inc) with no stated purpose but to recall the murders of Arizona Ventana Lakes HOA board members in 2000. It’s tag simply reads: A look back at the shooting that claimed two lives at a Ventana Lakes homeowners association meeting in 2000.  For some unexplained reason, the article, which simply lists a serious of Republic articles, appears under the NBC affiliate 12 News banner, peacock and all.

 

Why now? Why recall this event and not report on continued abuse by HOAs? Why not report on the outrageous HOA complaint filing fee increase to $2,000 unilaterally by the Director of the Dept. Fire, Building and Life Safety?  Or the repeated attempts to restore the homestead exemption to homeowners living in HOAs as Rep. Farnsworth’s HB2703 seeks to do? No, all there is silence on these important issues affecting over one million residents in HOAs.

 

Instead, on the azcentral.com site, dated March 24, the Arizona Republic ran a second article telling its viewers of the fears by retirees of too many cars on public streets.  Yes, a PUBLIC street. The Republic chose to echo the false and unsupportable arguments of the special interest groups lead by Community Associations Institute lobbyists and lawyers, who run an HOA column every Saturday in the paper.  Why?

Perhaps, could it be that Senator Gray is fighting hard for his SB1360 to stop HOA boards going wild and ticketing any homeowner for a car parked in front of the homeowner’s house, on a public street, without any effort to ascertain who the owner is?  Perhaps it is the realization that the HOA cannot fine outsiders who visit friends or relatives in the HOA. So, with the broad, unchecked powers of granted the HOA by the state and governing documents, they just fine anyone, right or wrong! CAI and arrogant HOA boards want more, and firmly believe that their ends justify their means.

This is a new low in its reporting of news. The Republic and the local NBC affiliate, 12 News,  must be considered public house organs for the HOA special interests in violation of their public trust.

 

History of violence with the Ventana Lakes HOA
http://www.azcentral.com/php-bin/clicktrack/email.php/6699005

 

Bill barring HOA ticketing of cars feared by retirees
http://www.azcentral.com/php-bin/clicktrack/email.php/6699012

 

1.   MYTH:   The HOA attorney represents you, and will assist you in your claims of wrongdoing against the board.

REALITY:  The attorney represents the HOA as reflected by the board. He defends the board.

 

2.  MYTH:          In spite of your contractual CC&Rs, your civil and fundamental rights are still protected by the Constitution. 

     REALITY:    As a private contract, your CC&Rs have priority over the Bill of Rights, unless those particular rights are so enumerated by the US Supreme Court, such as the Fair Housing Act.  People have the freedom to contract and can surrender their rights as happens, many times unexpectedly, as stated by the CC&Rs.

 

Read all the Myths

 

 

A bill of attainder, prohibited along with ex post facto laws by the US Constitution, has its counterpart in HOAs, those independent principalities operating outside the Constitution.  A bill of attainder is a special legisaltive act prescribing capital punishment, without a trial, for a guilty person.Here’s an example of the unchecked power and lawlessness within HOAs: 

In Arizona, and I’m sure everywere else, a homeowner is guilty and may be fined on the basis of a car, any car, parked in violation of the HOA restrictions on parking, whether or not the street is public, or the car owned by any member of the family of the “guilty” residence.

The homeowner who is so fined by the HOA for a vehicle not owned by him, or by any family member in residence, should file a complaint with the Arizona OAH to protect his rights.  OOPPPPPS!! Sorry, that’ll cost you $2,000 to defend your fundamental rights under the 4th (unreasonable seizures), 5th (deprived of property without due process), 6th (to be informed of the nature and cause of the accusation), and 8th (nor cruel and unusual punishments inflicted) Amendments — by means of the 14th Amendment. 

OPPPPPS! 14th amendment doesn’t apply. Sorry, you lose!

And this unbridled power is supported and encouraged by your elected representatives in the legislature as being good for the community!