Category: Opinion

Posts by GKS

send a wake up call to the US Supreme Court on HOA defects

I just read the 23 page US Supreme Court amicus brief[i] for The Cato Institute in Mariner’s Cove v. the United States, No. 12-1453, written by an illustrious group of legal-academic aristocrats. Let me make it quite clear at the start that I am not part of that group, or even an attorney, so I don’t have a built in “good ol’ boy” bias.

Selective citations and quotes were made from a number of cases, journals, and books including those of Evan McKenzie, Paula A. Franzese, and Steven Siegel.  (They wrote a critique of the NJ Supreme Court Twin Rivers decision, and other works, but you wouldn’t know that from the quotes).  Also quoted was Susan French who made that comment, not quoted in the brief,  in the Forward of The Restatement (3rd) of Property: Servitudes that, “Therefore this Restatement is enabling toward private government.”

My activist take on the brief can be summarized quit simply as:

1.         HOAs are growing faster than the rabbit population.

“The number of citizens opting to live in community associations—and the extent of commerce affected by such arrangements—is sure to keep growing, as the majority of new housing built in the past three decades is subject to association arrangements.”

 2.         The people love HOAs. “More and more citizens choose to enter into these property-rights-sharing arrangements because they provide substantial benefits.”

 3.         HOAs and local municipalities have a beneficial symbiotic relationship for the betterment of the community. 

 “Community associations provide a variety of private and public benefits, including increased property values, greater efficiency in the delivery of services, and lower costs to the public.

 “Community associations offer such benefits to local governments that developers are increasingly required [sic] to structure proposed housing developments as community associations as a condition of approval.”

 4.         That it’s only fair for taxpayers to pay the HOA for the loss of income. 

“By shifting a greater burden for paying for such services to the remaining members of the association without compensation, the Government’s taking here presents a textbook case of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, as it does from technical concepts of property law.”

 

Now, from these quotes as a good sampling, the 9 Men in Black cannot help but think that HOAs are the next best thing to heaven on earth. They would have no clue whatsoever that there is “trouble in River City.”  I would venture that they have no knowledge of the happenings and goings-on in HOA-Land, and would have to rely on the self-serving Cato amicus brief.

What is needed is a response showing the other side of HOA-Land that can be obtained from some of the same authors used by Cato, McKenzie, Franzese, Siegel and others. Court cases can be cited like the horrendous Poris decision by the Illinois Supreme Court, and the Wittenberg decision by the California appellate court, to name a few.  Or how about asking the Justices to think about, and asked to explain, The Truth in HOAs Disclosure[ii] as a starting point.

We have an opportunity to be heard by the US Supreme Court!

WHAT IS IMMEDIATELY REQUIRED IS TO INFORM THE SUPREME COURT JUSTICES of loss of rights, privileges and immunities of citizens under a despicable argument of a bona fide and legitimate consent to be governed.  I am not a lawyer.  I cannot file an amicus brief!

This is a very good time to act and be heard!

 

Notes

advocates sue State of AZ for unconstitutional HOA amendments bill – SB1454

Staropoli & Brown v. State of Arizona, CV 2013-009991, July 16, 2013

Arizona Center for Law in the Public Interest, Attorneys for the Plaintiffs

Timothy M. Hogan, Joy E. Herr-Cardillo

 

flag-arizonaNATURE OF THE ACTION

 1. This action seeks a Declaratory Judgment that Senate Bill 1454 enacted by the Fifty-first Legislature, First Regular Session 2013 (“SB 1454”) is unconstitutional because it violates Article 4, pt. 2 §13 of the Arizona Constitution,

 PARTIES

 2. Plaintiff George K. Staropoli is a citizen of the State of Arizona. Mr. Staropoli is an activist who advocates on behalf of homeowners on issues and legislation involving homeowner associations (HOAs).

 

Read the complaint here . . .

CA CAI opposes fair election protection for homeowners

In last month’s California appellate court decision in Wittenberg v. Beachwalk HOA,[i] the court upheld HOA fair elections procedures.  Homeowners are to be given equal opportunity to express opinions in opposition to those of the board, in and on the same media as used by the board. The common practice in most HOAs is to deny members equal access, which has extended in many cases to the denial of membership records and intimidating members from conducting door-to-door campaigning.

The record shows that Beachwalk had engaged in practices found in many other HOA instances:

1.      Holding multiple elections until the proposed amendment was finally passed,

2.      The ballot and cover letter expressed only the board’s recommendations on the amendment,

3.      The board made exclusive use of the HOA newsletter to promote its views, refusing a request by a member to comment on the election, and

4.      Denying a member the use of a fee paid “renter” room to hold a rally against the amendment.

 

The court explained, my emphasis,

This plain English definition [of advocacy], which we adopt, is consistent with the overall nature and purposes of section 1363.03. Subdivision (a)(1) was part of a bill that sought to “provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.” It is thus remedial in nature. “A statute which `is remedial in nature and in the public interest is to be liberally construed to the end of fostering its objectives . . . . `The rule of law in the construction of remedial statutes requires great liberality, and wherever the meaning is doubtful, it must be so construed as to extend the remedy.””

 

The intent of the court is clearly an example of the Enlightenment Movement after some 49 years since the creation of the first HOAs in this country.  While the court upheld California’s HOA fair elections statutes, the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[ii]  This position is in conflict with the CAI policy that HOAs are “one of the most representative and responsive forms of democracy in America today.”[iii] Unless, of course, CAI has some distorted view of democracy. In fact, CAI California is seeking support to appeal the decision to the California Supreme Court. 

 Notes

[i] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[ii] “Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013. (http://caiclac.wordpress.com/2013/07/09/appeals-court-ensures-equal-access-during-elections/).

[iii] “A FORM OF DEMOCRACY. Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”, Section 8 in An Introduction to Community Association Living (2006),  http://www.caionline.org/events/boardmembers/Documents/IntroToCALiving.pdf.

 

The HOA contribution to the decline in civic virtue

Jeb Bush and Clint Bolick, VP of Litigation at the Goldwater Institute in Phoenix and nationally recognized constitutional law scholar, expressed their concern for the loss of “basic American values.”  Although presenting their solution to the dysfunctional US immigration policy[i], their concern is well suited to the impact that the defective HOA legal scheme has had on civic virtue.

New US ConstitutionA good part of the failure to provide for education in civic awareness lies in the rapidly growing residential housing industry that requires a governmental body over developers’ subdivisions that contain common elements.  Some entity, if not the local municipality, must govern these common elements and that has fallen to the homeowners association (HOA) legal scheme. . . . There is no civic virtue or civil servants in HOAs, because the HOA legal structure for governance is a corporation.  The equivalent of civics or civil virtue is HOA virtue, which amounts to two simple attitudes:  pay your assessments on time and follow the rules. (See High Noon in HOA-Land: members who permit lawless boards to function).  

Read the complete paper here . . .

 

[i] Immigration Wars: Forging an American Solution, Jeb Bush and Clint Bolick (Threshold Editions Div. of Simon & Schuster 2013).

signed SB 1454 violates AZ Const. that holds extraneous HOA amendments as invalid

That SB 1454 violates the Constitution
That SB 1454 violates the Constitution

The following is an excerpt from my letter to Arizona Governor Brewer concerning her signing of a bill that had HOA amendments added.

 Dear Governor Brewer:

I wish to bring to your attention, as well as to the attention of other appropriate state persons, that on this past June 20th you signed SB 1454 (CH. 254) into law unknowing, due to the heated pressures of the budget and Medicare issues, that the bill violates the Arizona Constitution requiring “but one subject to be embraced in the title. The Constitution further states  any reference to provisions not contained in the title of the bill are invalid.  SB 1454 is titled, “campaign finance; in-kind contributions; disclosures, but contains the same provisions as found in the failed House bill, HB 2371, sponsored by Rep. Michelle Ugenti, dealing with HOA reforms.

Read the complete letter at SB1454