Category: Opinion

 Please see the Sept 2009 Commentary on municpality – HOA synergies promoted by an alliance between CAI, the national pro-HOA lobbyist that is opposed to constitutional protections for homeowners, and 11 Arizona municipalities:  Is CAI seeking HOA – municipality synergies?

33-1817. Community authority over public roadways
NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS, AFTER THE PERIOD OF DECLARANT CONTROL, AN ASSOCIATION HAS NO AUTHORITY OVER AND SHALL NOT REGULATE ANY ROADWAY FOR WHICH THE OWNERSHIP HAS BEEN DEDICATED TO A GOVERNMENTAL ENTITY.

 

Subject: Opposition to HB 2153

 

 Elaine M. Scruggs

Mayor, Glendale AZ

Honorable Senators,

    I am writing to request your vote in opposition to HB 2153.  The reasons for opposing HB 2153 are (1) its consequences will present public safety hazards in our neighborhoods and (2) it is a violation of individual private property rights.

    PUBLIC SAFETY HAZARDS.   Modern neighborhoods are planned with concentration of densities in various locations.  This is especially true in master planned communities, which are the norm today in most cities and towns.   The results are that at least some of the areas in master planned communities (and sometimes all areas) consist of very small lots on curvelinear streets with minimal space between driveways of adjoining parcels.  Lots are often 5000 sf meaning 50’ wide and 100’ deep.  There is simply no room for vehicles larger than a standard sedan to fit between driveways.  There certainly is no room for such vehicles to be parked across the street from each other.  Prohibiting HOA’s from having any control over usage of streets that have been dedicated to a municipality means that actions HOA’s will no longer be empowered to regulate safe usage of those streets;  preserve quality of life for the people living in homes affected by lack of control; nor maintain the rights of those people who have purchased homes with understanding that there would be control of safety and welfare.

   HB2153 interferes with neighborhood peace and quality in 91 cities and towns without any knowledge of lack of workability/feasibility of such a “one size fits all” legislative action.

    VIOLATION OF PRIVATE PROPERTY RIGHTS.   All members of HOA’s purchased their property with clear understanding of the Codes, Covenants and Restrictions that regulate residence in the HOA’s.  For many the presence of an HOA was a requirement in their home/neighborhood selection.   Many, many residents of Glendale have expressed their extreme concern and displeasure that their private contracts, entered into with full knowledge, executed and recorded, are now being changed without any consideration of their willingness to accept such changes.   Simply stated, people feel they are having their private property rights taken away without their approval.  

   I have heard from my constituents.  They are also your constituents.  I am forwarding their concerns to you and request your favorable consideration of their very serious concerns.

 

Respectfully,

 

//

In a continuation of constitutional protections first raised by the same homeowners’ attorneys as in Twin Rivers[i], Frank Askin of ACLU and Renee Steinhegan of the New Jersey Appleseed Public Interest Law Center, the homeowners argued in Radburn[ii] that “the principles of representative democracy require the Association to allow all Radburn homeowners to nominate candidates to serve on the Board.”  The ACLU brief argued, that

 [i]t is essential to the well-being and democratic rights of the New Jersey residents who live in common interest communities that this Court repudiate the trial court’s holding [in this case] that electoral procedures that `offend[] pure democratic sensibilities’ are acceptable under” the law.

 And the trial judge reflected that, “[t]here is no doubt that the current nomination procedure offends pure democratic sensibilities.” and that, “absent any specific legislative authority, he could not impose a strictly democratic nominating procedure.”  The judge further added insult to harm, completely contradicting the CAI propaganda that HOAs are the best form of direct democracy:

Characterizing Radburn’s current system of nomination as oligarchic or paternalistic or elitist or being out of step with the times does not, in my view, render it illegal . . . . It is not for the Court to say whether the system is wise. 

Furthermore, as I have pointed out in the past that the Restatement of Servitudes, while providing some protections and guidelines for HOA governance, is essentially a pro-HOA treatise that even recommended that equitable servitude law should prevail over any conflicts with constitutional law.[iii]   Yet, the court agreed that election procedures must simply be reasonable,

the Restatement provides that an association’s “election procedures must provide a reasonable opportunity for eligible members to become candidates for election and to make their views known to the electorate, and a reasonable opportunity for eligible voters to cast their votes.”[iv]

rejecting the homeowners’ argument,

“they [the homeowners] compared the importance of their voting rights within the community to their “voting rights in any public elections” and contended that “constitutional provisions regarding voting should be expanded to include . . . homeowner’s associations.

with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”  and with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”

And adding more insult to injury, offers an editorial comment,

Here, while plaintiffs’ arguments have surface allure, we are mindful that all Radburn owners agreed to be bound by the Declaration of Restrictions, which neither guarantees membership in the Association nor references any rights with respect to the nomination and election of trustees. 

Please understand that the court’s support of pro-HOA laws, the restatement of servitudes, the placement of private contacts, the Declaration,  above constitutional law has created a public policy in favor of a second form of local American political governance, the HOA.[v]  And the HOA is held superior to the once supreme law of the land, the Constitution.

Notes

[ii] Moore v. Radburn, A-4284-07T2, N.J. Super. App. Div, March 18, 2010 ( See  http://www.leagle.com/unsecure/ page.htm?shortname=innjco20100318252).

[iii] Restatement Third, Property: Servitudes, § 3.1, comment h, AMR 2002.

[iv] Id, § 6.16, comment c.

[v] See The Foundations of HOAs, Part III. American Political Governments: HOAs under servitude law & local government under the Constitution (http://pvtgov.org/pvtgov/downloads/hoa_history.pdf).

The appellate court of the NJ Superior court rendered its opinion in the Moore v. Radburn[i] case dealing with a number of legalities with respect to the application, wording and interpretation and construction of NJ statutes and the Radburn Declaration.  I will comment separately on the court’s opinion with respect to the application of democratic principles of government to this historic association. 

In reading this opinion, I was struck by the depth and extent of arguments and legalities relating to the governance of this territory, a subdivision under equitable servitude covenants, contrasting and comparing the Constitution, federal and NJ, the laws of NJ applicable to public entities, and the NJ condo/HOA acts and the private agreement Declaration.  The opinion is replete with references and citations to PREDFDA (Real Estate Development Full Disclosure Act), N. J.S.A. (NJ statutes), and the Radburn Declaration of Restrictions, and the court’s reconciling conflicting or vague wording and intent. 

What was happening was the application of the Radburn “constitution” and state laws that recognized and protected these independent, private governments not subject to the laws of NJ governing all civil government entities.  In short, there was the acceptance and recognition of a second form of local political governance[ii], protected under special laws granting special immunities and privileges to the association.  And these special laws are allowed to conflict with civil government laws and democratic principals, especially under the basic misconception that private agreements can supersede the Constitution when it comes to HOAs.[iii]

Issues like, “it reflects the homeowners’ view that many residents want equal membership, especially given that they are compelled to support the community“, and “The trial judge concluded that, absent any specific legislative authority, he could not impose a strictly democratic nominating procedure” recognized and accepted this second form of local political government contrary to the “supreme law of the land.”

America is no longer under the rule of law, but under the rule of man when private parties are allowed to bypass the contract between the people and the government as set forth in the US Constitution.  The intent of that contract can be further found in the Declaration of Independence, the Bill of Rights, John Locke’s The Second Treatise of Civil Government, and more.

[ii] See generally, Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs.

[iii] See generally, Part 2 – Is there an ideal HOA constitution?

Dreamland subdivision homeowners protested amendments requiring them to become mandatory dues paying members of a county club, which was turned into an HOA. This opinion put to rest several conflicting court cases in Arizona and in other states, dealing with the validity of what I have called, “ex post facto” amendments to the CC&Rs. In short, the strict contractual provision that the CC&*Rs could be amended by a majority vote and be binding on all dissenting members has been upheld the courts. Certain cases raised the important issue of the extend and impact of these amendments understanding that many of them were beyond any reasonable expectation of the member at the time of buying into the HOA.

Excerpts:

It is not reasonable to use the amendment provision to direct that one group of lot owners may, in effect, take the property of another group in order to fund activities that do not universally benefit each homeowner’s property or areas owned in common by all.

By contrast, the court determined that “[i]n those cases where courts disallowed the amendment of covenants, the impact upon the objecting lot owner was generally far more substantial and unforeseeable than the amendment at issue [in the case before it].”

We agree that these cases tend to support the homeowners, in that each refuses enforcement of a new covenant that markedly changed
the obligations of the implicated lot owners.

Congratulations to Cheifetz Iannitelli Marcolini, PC attorneys, Steven W. Cheifetz, Stewart F. Gross, and Matthew A. Klopp.

The case: Dreamland Villas CC v. Raimley, CA-CV 08-0388, AZ App. Div. 1, Mar. 16, 2010 at VICTORY!

My commentaries on this substantive issue:

“There are two important factors in this decision to be noted that have a tremendous impact on constitutional protections, and reflect a government not subject to the Constitution. First, implicit in the above decision by the court is the legality of “ex post facto” amendments: amendments to the CC&Rs that alter the homeowner contract and bind the homeowner without his consent to the new contract.  An action that is not permitted under the Constitution for government entities.”   The extent of HOA intrusion into a member’s life.

“Wow!! HOAs escape ex post facto restrictions and eminent domain protections — no compensation was offered homeowner. Welcome to the HOA-land of independent principalities with their own multiplicity of protected private “constitutions.”

“The argument advanced for amending those so-called contracts, and upheld in the courts, is that they contain an amendment procedure, and so long as the procedure was followed they are valid. So argue the “expert” CAI attorneys. But, they want you to ignore the other side of due process — substantive due process where the HOA “law” is itself a violation of our system of government.

“And forget about any question of a buyer’s “reasonable expectation” as a requirement for a valid amendment. Or that there is no explicit waiver of the surrender of any property rights. Or, that under contract law a CC&R amendment easily falls under an “agreement to agree” (“A-to-A”), and is not binding. An A-toA is an enforceable document if the specifics are sufficiently definite, as well as compensation, but some details are to be worked out. In a valid A-to-A, parties cannot bind themselves to negotiate to reach an agreement on some issue or important detail. (See Black’s Law Dictionary). What is an amendment? It is not a negotiation between the HOA and every individual homeowner, especially if not 100% approved! It can be a very important issue (detail) not heretofore contemplated or envisioned by the buyer.

“How then are they valid? Because the courts have treated this CC&R “contract” not strictly in terms of the words contained therein, but quite liberally by ascribing public government attributes to the HOA, far and above any reasonable interpretation or construction of the CC&R “contract”, and beyond any reasonable or “buried” intent to form a de jure government.”

HOA principalities where there’s no ex post facto or eminent domain protections