Author: HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

Will the AZ Legislature reject the Constitution: does the HOA control public streets?

Thanks to Dennis Legere of AZ Coalition, AZ HB 2470, as far as I can tell form LegiScan, there are no amendments to this bill. Interpretation: caps are new provisions; strikeouts are deleted.

“33-1818. Community authority over public roadways  A. For any planned community for which the declaration is recorded  after December 31, 2014 and Notwithstanding any provision in the community  documents, after the period of declarant control A GOVERNMENTAL ENTITY  ACCEPTS THE TRANSFER OF OWNERSHIP OF COMMUNITY ROADWAYS FROM THE  DECLARANT, an association has no authority over and shall not regulate any  roadway for which the ownership has been dedicated to or is otherwise held  by a THAT governmental entity.”

Sections (B) and (C) of ARS 33-1818 are deleted in their entirety. Note that there is no “IF” qualifier meaning that the bill is a mandate for state action. The bill states the law for all HOAs.

As of this date its sitting in the Rules committee. It must pass Rules in order to go to the floor for a House vote. Then again in the Senate. Therefore, advocate Call To Action is to email the House Rules Committee members and argue to pass on the bill for a floor vote. Let all the Representatives have their democratic say.

Historically, this control of public streets issue  started back in 2014. A comprised solution was found in  2014 (I was then involved with Sen. Barto) that split who controls into 2 time zones. If HOA formed after 2014 the municipality controls, otherwise control status remains as of 2014. The only active and relevant HOA, or pseudo, HOA was Sun City West — Up until 2025. STAY AWAKE, more coming.

The new bill, HB 2470, amends a technical correction amendment of 2023 (HB2298, CH. 84)) relating to ARS 33-1818. It stated that HOAs formed prior to January 2015 must call for a vote of the members to retain the HOA’s control of public streets within the HOA. Only if it already “regulates any roadway,” which I believe is only Sun City West – those  retirees.” (My HOA falls into this category, before 2015 with public streets, but not regulating them).

This bill makes it clear that once the developer/developer turns the streets over to the state, HOAs have no control over public streets within the HOA. A solid stand in support of the AZ Constitution and the laws of the land. Obviously, an HOA with no public streets is still possible, and the HOA bears all costs for the street.

There 98 RTS entries FOR the bill, and 30 opposed, including CAI, the League Of Arizona Cities & Towns, the towns of SURPRISE,  Gilbert and Goodyear.  I recognize some opponents as being individuals who are CAI member attorneys: Lynn Krupnik and Jason Smith.

This bill is really a power struggle between CAI and state enforcement of  the Constitution. Why then is CAI once again vehemently in support of private government HOA control of public streets and not the state when there are existing laws that would meet an HOA’s objective?  Specifically, seeking a variance from their local planning board, and in general creating HOAs under Arizona’s Home Rule statutes, which makes them  a municipality. Why? Because the real import of the bill is CAI’s control of HOA-Land without state oversight. One aspect of a slow death to a democratic America.

The battle for HOA Constitutional Government – supplement

It should be well understood that the real purpose for HOA reform legislation is to seek homeowner-member justice and fairness. Either with respect to day-to-day denied under the HOA legal scheme, as set forth in the Declarations of CC&Rs and state laws. 

To be more specific, these rights affect free speech, participation in HOA government, fair elections procedures, due process with respect to fines and punishments including foreclosure abuse, and an effective means to hold the board accountable under the law. In other words, challenging the validity and constitutionality of the HOA legal structure.

Over the past year I have noticed a favorable increase  in legislation and in court decisions as a result of increased claims by homeowners and advocates who, by their actions, are winning with the winners.  What is there to fear? Reforms have moved at a turtle’s pace over the past 30 years. Nothing to lose by taking a strong stand backed by legal authority.

“There can be no change without change”

Encourage others to take a strong stand by providing authoritative support to win with the winners, as can be found in HOA Constitutional Government: the continuing battle. My Collective Writings over 24 years.  Spread the word to others to act without fear.

Publisher’s Cataloging-in-Publication Data

  • HOA Constitutional Government: the continuing battle / George K. Staropoli
  • 145 p. StarMan Publishing, Surprise, AZ | includes index | Published January 9, 2024
  • ISBN: 978-0974448886 (pbk) | ASIN: B0CSC5LCY8 (KDP eBook)
  1. Constitutional law – Constitutional principles – public policy – form and structure of government
  2. Political science – sovereignty – consensus. Consent to be governed –  law making  – local government
  3. Social sciences – community – social influence

K3154 – 3370 LCCN classification

The neglected court Rule 11(b)

An informative Arizona case, Potter v. Arizona House [Potter],  brought forth claims that Rules of Civil Procedure 11(b) [FRCP] were violated by plaintiff and sanctions were awarded under 11(c).  Potter in his lawsuit discovery request sought Arizona House of Representatives public records, and also sought communications records between a private,  third party person and the Representative being charged. She refused claiming as a private person she was not subject to public records disclosure laws.

She filed a Rule 11(b) complaint citing (b)(1) and (b)(2) that the request was improper and to harass and delay, and that the claims were unwarranted —  “frivolous”. The court had evidence and ruled that Potter was vexatious litigant – in short just a troublemaker – that didn’t help Potter and the court did not dismiss her charges;  sanctions were justified.

This Commentary brings an important message to those homeowners who have complained on social media about their HOA many times, on many issues, over a period of time. You have probably been seen, not charged, as a troublemaker tying up the court’s time. Not helpful. 

To make my point, allow me to quote the phrase from the old Dragnet TV police series of the 1950s:  “Just the facts, Mame. Just the facts.”

See in general,  HOA members fail to invoke their strongest weapon — Rule 11, representations to the court (2018).

 References

Potter.   Potter v. Arizona House, CA-CV 23-0213, Ariz. App. 1 (2-1-2024).

FRCP-11. Note this FRCP Representations section can also be found in state rules of civil procedure, R 11 (b). Both contain R 11(c) that provides sanctions for violations.

Federal Rules Civil Practice (FRCP-11)

“(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

collective writings — immediate release

FOR IMMEDIATE RELEASE                 Contact: George K. Staropoli, 602-228-2891

The battle for HOA Constitutional Government

Surprise, AZ – February 1, 2024 — For over 60 years, since 1964, the controversial issue as to the validity and constitutionality of Homeowners associations (HOAs, PUDs, POAs, condos) has been ignored by state legislatures, attorney generals, the judiciary, and the media.

In order to set the record straight and to educate and reorient the policy makers, the constitutionality of HOAs is raised in the collective writings of long time HOA reform activist and nonlawyer, George K. Staropoli. In his  January 9, 2024 published HOA Constitutional Government: the continuing battle,  he has presented 56 of his 1,300 social media posts over his 24 years as a reform activist.

These posts – as originally written and not as legal advice or opinion — contain his views based on documented legislation, case histories,  statements and various releases by the parties including the lobbyist entity, in their  own words.

The case is made that 1) the HOA declaration of CC&Rs is ab initio unconstitutional and invalid; 2) the CC&Rs are a devise to escape the application of constitutional protections; 3)  HOAs are permitted to do things municipal governments are not allowed; 4) there is no genuine, valid support for “agreed to be bound” under the application of equitable servitudes constructive notice doctrine; and 5) the judiciary has failed to educate  judges and law students on laws and principles affecting the HOA legal scheme.

It is argued that this irresponsible state of affairs is primarily the result of the dominance and influence on the policy makers by the national HOA lobbying trade group.  All the state HOA “Acts” and laws constitute “new law,” and the HOA legal scheme has been treated as sui generis; mixing laws of the land with new meanings and definitions to sell the HOA legal scheme to all Americans.

These Acts are nothing more than parallel laws to the Constitution, and superseding the Constitution in many court decisions. In a selected entry Staropoli quotes CAI’s brief to the NJ court in 2006:

“In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”

* * * *

Get HOA Constitutional Government – amazon.com

HOA Constitutional website: http://pvtgov.info. Staropoli has had his per se AZ Supreme Court amicus briefs challenging HOA constitutionality accepted by the court.

Business Judgment Rule: an outstanding con job!

In short, the business judgment rule (BJR) is an unconstitutional delegation of legislative powers to a private entity.  The rule essentially allows the judge to defer to the HOA board as best to decide the matter,  denying the due process of law for citizens to be heard in court.  It is an unequal protection of the laws! However, the lawsuit was before the court to obtain an independent and supposedly unbiased application of the law. Think about it! The court is rubberstamping the BOD’s decision. Say what!

It’s nothing more than an understandingly successful con job fostered upon HOA members.  The BJR is a poster child for the need for advocates to be fully educated about the laws, government, and the courts.  STOP THE CON!

First, be aware that you will not find “business judgment rule” anywhere in state statutes and codes, that’s why it’s referred to as a “rule.”  What the reader will find are references to the duties and obligations of directors and officers to be fair, without conflicts, and acting in the best interest of the HOA. This is the basis for the misguided presumption.

Let me explain as best as I could and keep this complex issue as simple as possible. The courts’ adoption and continuing support for  the BJR avoids and ignores several constitutional issues at play: 1) delegation of legislative powers, 2) the HOA as a state actor, functioning in the place of municipal government, and 3) the judicial scrutiny doctrine testing the constitutionality of a laws. 

Read the full paper here: the con job