Month: March 2019

Sun Cities rec centers: politics at the AZ legislature

I have cautioned homeowner rights advocates to be respectful of their legislators as they are the only game in town to bring about HOA reforms.  But there come times to hold the legislators accountable for their abuse of discretion and power amounting to violations of the US and Arizona Constitutions, and failure to “establish justice, insure domestic tranquility . . . promote the general welfare and secure the blessings of liberty.”  (Preamble to the US Constitution).

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Background

Many hours were spent in researching the facts surrounding this bill to determine the real intent behind its sponsorship and the true motivations for its support.

The AZ House GOV committee just passed this reincarnation of the failed HB 2374 by a 6-5 vote (Reps. Kavanagh, Payne, Blackman, Petersen, Rivero and Thorpe all voting in favor of the bill) with the assistance of Senator Borrelli who allowed SB 1094 to be used for a S/E replacement of HB 2374. Their reasons are completely untenable giving 1) the nature of the bill, the misleading assertions, convoluted language including double negatives, 2) unbelievable legislative intent “to clarify” a 1994 bill some 24 years later, and 3) the constitutionality of the proposed statute.

Before proceeding, it must be understood that in 2015 the Superior Court in Anderson v. SCRC held the Sun City rec center, SCRC, to be an HOA.[1]  Now, 4 years later, this bill is an attempt to overturn this ruling.

In reading the bill several statements caught my attention.  I will explore them one at a time.

First, there is the question of the purpose of “before January 1, 1974.”  I cannot find any justification for this date, as prior dates are used to get around grandfathering problems to avoid litigation.  Here the bill seeks application to ‘associations” prior to this date, under the same conditions found in today’s bill.  However, Sun City was incorporated in May 1968 and SCW in Sept. 1979.  Where does 1974 come from?

1.  Nature of the bill et seq.

SB 1094 is an attempt to avoid my position that the original Sun City bill, HB 2374,  violated the AZ Constitution being a special law for a particular entity, the 2 Sun Cities.  The heart of the bill has now become permitting the “voice of the people” to be heard to reject or uphold the PUD statutes in question.  In what I referred to as cute, slight-of-hand manipulation to confuse the public, the bill permits a vote of the HOA members to decide whether or not their rec center should be an HOA or not. Say what??

The bill is cleverly worded with convoluted statements containing double negatives[2] or wording amounting to a double negative.  “This chapter [regulating HOAs] does not apply [to] a nonprofit corporation . . . that does not have authority.  And then adds an illogical approval by the membership to not accept –to reject —  the law. It seems designed to cause confusion. Read Subsections C and D carefully.

Further confusing is the redefinition of “Association” to include associations not operating as a de facto HOA to elect to become an HOA and be regulated. Say what?

Each of the 3 sections discussed is a statement that the rec centers, now “harmlessly” disguised as “associations,” are exempt from the PUD Act and regulation by the state, unless an illogical vote by the membership approves obedience to the law  — we want to be an HOA — as ruled by the court in Anderson.[3]   (This aspect of the bill is covered in more detail in (3) below).

  1. Outrageous claim of legislative intent

The PUD enabling act of 1994 is a short 2-page, 6 sections Act, of which I have a copy and have read.[4]  It does not contain any statement of legislative intent.  Its version of 33-1802, Definitions, remains essentially intact, for our purpose here, after 24 years.  SB 1094 claims to uncover an error, an oversight into the legislative intent and seeks to clarify it and set it straight. This defense is without merit, plain and simple!

The bill in its new form remains an unconscionable support of a special law for a special, miniscule application for just 2 HOAs: Sun City and Sun City West.  Furthermore, by issuing this “legislative intent” the Sponsor claims that it speaks for all the Arizona legislators aside from the 6 House GOV committee Representatives who supported SB 1094

  1. Unconstitutional delegation of legislative power

SB 1094 does not escape the constitutionality challenge  that it is an invalid delegation of legislative authority to private persons, flying in the face of long held doctrine declaring such acts as unconstitutional. This unconstitutional delegation was dealt with in McLoughlin v. Pima County  (CA-CV 2001-0198, Div. 2,  2001) concerning zoning restrictions determined by the people. In its discussion the Court quoted from several cases, and for brevity,  

“However, it is a well-established theory that a legislature may not delegate it’s authority to private persons over whom the legislature has no supervision or control.” 

The bill declares that a rec center (after redefining what an HOA is) is not subject to HOA regulation unless a majority of the owners want it to be as described in (1) above.  The people, the homeowners, are making law! That’s a mockery of the law! It is an unconscionable bill that turns the Constitution on its head and grants more freedom to the independent HOA principalities.

It is a very astute political ploy and a surprising acknowledgement of the political and social dynamics at work within HOAs.[5]  The legislative mantra, here and in other states, is that the homeowner is free to vote on amendments under the governing documents.  The wording of this bill shows that the legislators know better and understand that overthrowing the HOA board is a very high barrier to overcome.

The underlying misleading picture ignores the fact there is general apathy and indifference to homeowner participation, just like with the voter outcome in our general public elections.  In short, the likelihood of an approval of an amendment is very small, especially when there would be no lobbying by the HOA board to support the vote. Why didn’t the sponsor construct the bill to seek a positive response by the membership for approval, rather than allowing the law to be changed by the highly likelihood occurrence of a default vote —  people not voting.   It’s a rigged bill to overturn the Anderson ruling by the court.

Good ol’ fashioned politics at work “here in River City.”

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The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community and does not constitute legal advice or opinion. We perform legal research and case analysis services, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in any report, finding, recommendation or any communication, or linked to this web site and its associated sites.  No document prepared by HALRIS or George K. Staropoli is to be considered a legal document to be filed in a court or in a legal proceeding. Nothing provided by HALRIS or George K. Staropoli should be used as a substitute for the advice of competent counsel.  George K. Staropoli and no person associated with HALRIS, AHLIS, HOA Constitutional Government or Citizens for Constitutional Local Government are attorneys nor are employed by an attorney.

Notes

[1] Anderson v. Recreation Centers of Sun City,  1CV 2015-012458, Maricopa County (2018).
[2]   “Double negatives are two negative words used in the same sentence. Using two negatives turns the thought or sentence into a positive one. Double negatives are not encouraged in English because they are poor grammar and they can be confusing.” Your Dictionary.com. 
[3] Supra n. 1.
[4] See Enabling Act.
[5] See The HOA-Land culture (2019).  “We must make the injustice visible”  Mahatma Gandhi.

HOA political dynamics: totalitarian democracy

HOA political dynamics: authoritarianism & totalitarian democracy

First, allow me to clarify some important concepts and definitions that I have employed to help in understanding my positions and views.

  1. The term “HOA” is commonly used in 2 different aspects. While commonly used to refer to the alleged community, in reality the “community” is a real estate “package” of homes, landscaping, amenities, and rules.
  2. “HOA” more aptly applies to the association itself, which is the de facto – in fact – political governing body of the subdivision or real estate “package.”
  3. “Government,” meaning political government, is defined in its general sense as “the person or group that controls and regulates the people within a territory.” Since your subdivision is a territory, that makes the HOA a truly political government.
  4. “Private government” is a de facto government as defined above not incorporated under municipal statutes but under nonprofit corporation statutes. As such, it is a functioning government unrecognized by the state as Cuba had been for years.
  5. “Quasi-government” simply means for all intents and purposes having all the attributes of a municipal government, except the names have been changed to mislead the innocent public.
  6. “HOA-Land” is my descriptive term for “the collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.”
  7. “Structured tribalism.” Tribalism is a term currently in vogue to describe divisiveness in America. “Structured tribalism” extends that view to describe the intentionally planned policy for the acceptance and control of HOA-Land.[1] It views the fragmented HOA-Land as distinct villages and clans.

While the CC&Rs and declarations contain abundant boiler plate, each is a separate legal agreement and as such  the HOA can be viewed as a village.  The conglomeration of master planned communities or HOAs developed by the same developer can be seen as a clan.  All stemming from the HOA “bible,” the 1964 Homes Association Handbook.[2]

In an earlier editorial on civic responsibility,[3] I questioned the allegiance, the loyalty, and the obligations of HOA members.  Was it to the US Constitution or to the HOA “constitution,” the governing documents?  I answered that it appeared to be the HOA first and foremost – secessionist — creating division within the country.

This was followed up by the editorials[4] where I examined the attitudes, beliefs, and values of the HOA members themselves.  I focused on the aspect of long-term indoctrination by the HOA School of Public Enlightenment and Propaganda, my categorization. The question yet to be addressed was: What role did the members play themselves in terms of a predisposition to accept authoritarian, private governance?

By serendipity, or by destiny, I just received an email discussing authoritarianism and totalitarian democracy.[5] It argued that Americans were accepting authoritarian control, which seemed  to be a cause for the behavior of cult-like, dogmatic member acceptance of the HOA board’s (BOD) actions and attitudes.  It seems that the more predisposed to authoritarian control the more the member acted as a diehard, dogmatic, true-believer in the BOD.

“There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.

“These “authoritarian followers,” as social science labels them, are also highly ethnocentric, thus frequently racist, nationalistic, deeply partisan, and threatened by “the other.” . . . Other testing shows these people are also highly defensive.”

The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law.[6] The authoritarian nature of HOA-Land is masked by a thorough indoctrination[7] that the real estate subdivision is a democratic community (although the HOA is not a municipal entity but a private nonprofit association)  because the members are allowed to vote, as meaningless as it is.

But the HOA is truly a totalitarian democracy.  To paraphrase the founder of fascism, Benito Mussolini, “All within the HOA, nothing outside the HOA, nothing against the HOA.”   The marketing and promotion of the HOA model of governance has been conducted in a very smooth manner: no negatives, “carefree living,” playing to the emotions and desires of the members, misleading statements to induce buying, and empty promises of “maintaining property values, ”etc.

Here’s are some of J. L. Talmon’s views of totalitarian democracy as found on Wikipedia (my emphasis):

“A totalitarian democratic state is said to maximize its control over the lives of its citizens by using the dual rationale of general will (i.e., “public good”) and majority rule. An argument can be made that in some circumstances it is actually the political, economic, and military élite who interpret the general will to suit their own interests.

“A totalitarian democracy . . . retains full power of . . .  the right of control over everything and everyone. Maintenance of such power, in the absence of full support of the citizenry, requires the forceful suppression of any dissenting element except what the government purposely permits or organizes

“It is [the member’s] duty and responsibility to aid his compatriots in realizing [this right of control]. Moreover, any public or private activities that do not forward this goal have no useful purpose. Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.” 

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that!  But these views of HOA-Land are a valuable enlightenment because it takes HOA-Land out of the hands of the propagandists, out of the shadows, out of the darkness of Plato’s cave.[8]  It reveals reality.

 

References

[1] “In short, CAI has been setting itself up as the national private authority, a sort of Board of National HOA Governors,”  CAI manifesto: CAI’s plan for HOA-Land in America, 2016.

[2] See my 2006,  Analysis of The Homes Association Handbook.

[3] Civic responsibility vs. HOA member responsibility.

[4] HOA social dynamics.

[5] Verdict” email from Justia.

[6] “Authoritarian” can be defined as “a form of government characterized by strong central power and limited political freedoms. Individual freedoms are subordinate to the state and there is no constitutional accountability and rule of law under an authoritarian regime.” Wikipedia.

[7] Supra n. 2.

[8] “In the Allegory of the Cave, Plato distinguishes between people who mistake sensory knowledge for the truth and people who really do see the truth.” (See Philosophyzer).

FL HB 1259 seeks criminal penalties against HOAs

Florida’s HB 1259 [1] has the makings to become landmark legislation: holding the HOA and its directors accountable under criminal penalties as are all municipal employees held accountable.  As FL law now stands, they violate the equal protection of the law and due process requirements under the 14th Amendment.  Homeowner members are subject to special laws that apply to HOAs and condos and will  not pass judicial scrutiny.

Professor McKenzie called it like it is back in 1994 in his seminal book, Privatopia: Homeowner Associations and the Rise of Residential Private Government.

“HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”

Why the special treatment for HOAs?   The answer is obvious.  HOAs are contractual governing bodies under state nonprofit corporation law, and thus require a board of directors to run the association.  Holding the BOD accountable under criminal law would put a huge crimp in getting members to become directors and officers, a result feared by the pro-HOA parties and even the members themselves. Without directors there cannot be a functioning HOA.    Consequently, some modifications to the state’s constitutional system of government had to be made to exempt the BOD from state accountability.  Justice was denied the members for the survival of the defective HOA scheme.

Even if directors and officers were offered a salary on par with city/town council members, I doubt this would fly. The members, who go bonkers on any raise in assessments, would not go for it.  If they did go for it then they would demand performance from the BOD and the weak argument that they are volunteers with a good heart without the abilities to perform as required and should not be held accountable falls apart.

HB 1259 will surface these major defects in the HOA legal scheme and as well as the unconscionable legislative protection of HOAs.  But this will not happen without FL advocates making these constitutional arguments and positions loud and clear –  to the legislators, to the media, and to the public at large.

 

Note 1.  See Deborah Goonan’s discussion of HB 1259 at IAC.

HOA social dynamics — “freedom of mind” pt. 1

HOA social dynamics and the loss of “freedom of mind”

By: George K. Staropoli, March 18, 2019

Part 1.

A very disturbing  behavior by the vast majority of HOA members in many HOAs, both large and small, is their willingness, their wholehearted obedience, and their unquestioned loyalty to behave as instructed by their board of directors (BOD).  When confronted with contradicting views, criticizing and opposing the BOD’s actions and conduct — supported by documentation in statutes, correspondence and BOD behavior — members simply ignore the evidence.  These unknown neighbors, these strangers for the most part, who apparently cannot think for themselves can affect your home without your consent.

And when questioned and confronted as to their reasons and justifications for these outright illogical and wrongful acts by their BOD, the questioner is met with a cult-like resistance and dogmatic defense.  The defenses are a combination of, among other things,

  1. the BOD can do no wrong;
  2. the BOD is made up of volunteers doing what’s right for the HOA;
  3. outright denying and disputing the opposing arguments without investigation;
  4. labelling the questioner as a troublemaker and attacking his motives; ostracize, and disparage;
  5. a defense consisting of slogans and mottos, like “no government interference.”

The BOD demands faith (never question), loyalty (agreement with the BOD),  and obedience (suffer the consequences for disobedience, both financially and emotionally). However, there may be a small opposition group, but it usually lacks the power to be effective because the governing documents have been designed to restrict such “upstarts.”   HOAs restrict the freedom of political speech as permitted in the public domain.

I am aware of two instances —  both in Arizona by upscale, large HOAs — of the extreme degree to which members display a lack of “freedom of the mind”[i] concerning amendments to the governing documents that have material consequences.   In both cases the membership was given notice of serious violations of the law and governing documents supported by hard evidence. In both instances the BOD failed to address these concerns and to justify its actions.  The vote was allowed to continue and the amendments became, in my view, falsely effective.

There is clear and convincing evidence that this irrational behavior is the result of a long-term, systematic program of indoctrination using propaganda[ii] as the means to accomplish the aims and goals – the “party line” — of the propagandists.  Enforcement of the party line can be found in the same methods used to enforce cult obedience.[iii]  The causes of this state of affairs in HOA-Land[iv] are analogous to the pressures of the pre-WWII Germans and today in America with respect to Facebook and other  businesses fostering social media for their own self-serving agenda, respectively.

Milton Mayer interviewed average Germans in 1955 asking how could they let the Nazis take control. One telling response was that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”[v]  The vehicle for this abandonment was the Ministry of Public Enlightenment and Propaganda.

Roger McNamee[vi] describes Facebook’s motive and mission as to make money by allowing people to “talk” to each over the Internet.  Facebook uses behavioral modification techniques such as, playing on “’lizard brain’ emotions such as fear and anger,” “giving users ‘what they want,’” and “[nudging] user attention in directions that Facebook wants.”  Both examples seek to control and limit the people’s “freedom of mind” by indoctrinating them to their self-serving agendas. The analogies to HOA-Land are striking.

Continue with Part 2.

References

[i] See Social dynamics freedom of mind.pdf (2019), footnote 1.

[ii] Propaganda techniques: glittering generalities; testimonials from prominent people; name calling; use of false and misleading statements.

[iii] Obedience: “a form of “social influence in which a person yields to explicit instructions or orders from an authority figure.”

[iv] I have defined HOA-Land as a collection of fragmented independent principalities within America, known in general as “HOAs,” that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States.

[v] They Thought They Were Free, Milton Mayer, 1955.

[vi] Zucked: Waking Up to the Facebook Catastrophe, Roger McNamee, Penguin Press (2019).

HOA social dynamics — “freedom of mind” pt. 2

HOA social dynamics and the loss of “freedom of mind”

Continued from Part 1

By: George K. Staropoli, March 18, 2019

Part 2.

The best explanation I’ve found, and reinforced after some 7 years, for this illogical mass conduct by HOA members can be found in my 2012 six-page paper re-titled as, HOA social dynamics and the loss of “freedom of mind.”[i]  The following is my Conclusion.

In the Milgram[ii] and Stanford Prison[iii] Experiments researchers explored what evil men can and will do to others 1) under repeated pressure from authority figures to follow the rules, and 2) in an environment where one is expected to act in accordance to the  roles of the community.  The researchers found that basically good people will indeed do harm, even do severe harm, to others.  The conditions and factors present in these experiments exist within the HOA community, and the harm being done to others in these HOAs is well documented in the media and in the courts.

 The authoritarian insistence on enforcing complete obedience to the CC&RS, as repeatedly impressed on HOA boards by their attorneys, is well documented. The compliance by the directors and officers with these pressures for enforcement is well documented.   The blind obedience, apathy, and passivity  to authority by HOA members – the “prisoners” — who sign and agree to provisions blatantly detrimental to their interests, is well documented.  The adoption of the roles demanded of them by the system  and by the situation —  state laws and the court opinions, the adhesion CC&Rs and governing documents, and the lack of effective recourse — is well documented.  

The numerous “educational” seminars taught  by the attorneys and managers, many of which are sponsored by state and local governments,  serve not to fully inform but to indoctrinate the members into roles of obedience  and passivity, is well documented.  Good people doing bad things or remaining silent in the midst of wrongful acts and actions by the HOA is well documented.

State governments, the legislatures,  cannot allow HOAs to continue to  run amuck and to  freely violate the laws and their contractual obligations without legitimate and necessary constraints holding them accountable for the harm that they do to others.  BODs are getting a free ride from their state legislature.  

State legislatures and town/city governments must stop supporting the propagandists responsible for creating this unhealthy attitude.  They must immediately conduct a valid and independent vetting of the principal party that conducts their educational seminars and conferences that advance their misleading party line. A fully informed citizenry within HOA subdivisions is a necessity for democracy to function and protect individual rights and freedoms.

References

[i] See Social dynamics freedom of mind.pdf (2019), footnote 1.

[ii] Obedience to Authority, Stanley Milgram, Harper Perennial (1720) (1983).

[iii] The Lucifer Effect: Understanding How Good People Turn Evil, Philip Zimbardo, Random House (2008).  Made into a movie in 2015, The Stanford Prison Experiment. 

Continue reading HOA social dynamics — “freedom of mind” pt. 2