Category: Opinion

Arizona statutes ARS 33-1803 and 33-1247 state that “after notice and an opportunity to be heard” the HOA/condo board may impose monetary penalties. This wording, in itself, is insufficient to pass the Supreme Court’s opinion on due process requirements.

In the landmark case, Goldberg v. Kelly, 397 U.S. 254 (1970), the court had to rule on whether or not NYC welfare benefits adjudicated by a NYC agency met the criteria of due process protections. A welfare recipient was entitled, under the NY statutes, to a “fair hearing”, meaning an opportunity to appear personally before an independent tribunal, which was equivalent to Arizona’s Off. of Admin. Hearings, offer oral evidence, confront and cross-examine witnesses before judgment on his welfare status.

To provide a lesser protection of due process rights, the government must show an overwhelming justification of its interests. Here, with HOAs, we never get an answer to the question as to what the state’s overwhelming interest in allowing a private organization to deprive people of their property interests, as well as money. Here, the government is permitting private organizations to adhere to a lower standard than what the Constitution imposes on the government itself.

This is the basis of charges of the unequal protection of the laws, of governmental state actions involving the active support, cooperation with and coercion to accept HOAs; of the entwinement of the government in private affairs; and the symbiotic relationship where both the government and private entity are involved in mutually supportive actions. State actions subject the private organization to the prohibitions of the 14th Amendment. All are Supreme Court test for state action — Brentwood Academy v. Tennessee School Athletic Assn, 531 U.S. 228 (2001).

The false and misleading argument often heard that the CC&Rs is a private contract and therefore people can hide behind the contract to do whatever they please. We all know that this argument is bogus, because there are so many instances where the government has not only the right but obligation not to enforce contracts that violate the law or are contrary to the best interests of the public. Yet, proponents of the status quo don’t seem to have a problem with this, and demand their “sacrosanct” status.

I repeat, Arizona fails to provide proper due process protections for allegations of violations of HOA governing documents that permit the HOA to deprive the homeowner of his property rights that also include monetary penalties.

The following represents a chronology of emails on HOANET (hoanet@yahoogroups.com) in response to an initial post from the editor below, which said, in part:

Happiness in an HOA is based upon, as any other authoritarian government, strict acceptance, obedience and conformity to arbitrary, financially oriented rules, not rules designed to foster individual, personal happiness leading to healthy community relations. In my view, such an underlying premise — conformance and obedience — is at the root of the deterioration of healthy, productive communities.

To view the entire exchange, click here.

Excerpt from closing paragraphs:

The consumer home buyer must be protected under the police powers of the state, as we have with Truth in Lending, Truth in Advertising, strict liability, fair housing, etc. In all of these cases the consumer had signed a contract, yet the state felt the necessity to protect the consumer from provisions that were deemed harmful to both the individual and not in the best interest of society. But, somehow, the state continues to see no evils with planned community governing documents, and in any of the onerous provisions that create an unconscionable adhesion contract.

Policy makers must be made to see the fallacies of their current views, and that the continuance of these views only serves to perpetuate these torts, these wrongs, upon innocent people.

View the complete paper here.

I just watched the ABC Barbara Walters special, “Heaven, where is it? How do we get there?” Part of this special was a discussion with His Holiness The Dalai Lama, spiritual leader of Tibetan Buddhism. It made me revisit the Dalai Lama’s book, Ethics for the New Millennium (1999).

In the first chapter, The Dalai Lama speaks of the effect of western materialism and the overriding emphasis on material wealth and property. He states that western society is suffering from the increasing isolation of people, of neighbors;a lack of caring and concern for others; and that a true compassion for the feelings of others, including one’s neighbors, has caused many social problems with a negative affect on the community. He reflects this attitude by westerners,

“But with these developments, there has arisen a sense that my future is not dependent on my neighbor but rather on my job or, at most, my employer. This in turn encourages us to suppose that because others are not important for my happiness, their happiness is not important to me.” . . . . “According to my understanding, our overemphasis on material gain reflects an underlying assumption that what it can buy can, by itself alone, provide us with all the satisfaction we require.”

Talking with a good friend of mine, she and her husband enjoy friendly and good relations with their neighbors, together setting up holiday lights and other festivities. I asked if she lived in an HOA; she answered, no. That’s not surprising since planned communities with HOA governance have an underlying premise that your neighbor cannot be trusted, and must be watched vigilantly. Otherwise, as the promoters maintain, property values, upon which people in local communities are more and more basing their happiness, will suffer drastically. That your neighbor, not YOU, but those other guys, will choose purple polka-dotted houses and insist on their right to fix their cars in their driveway. Such an unreal view, as we all know but may not wish to admit, is the legacy of HOA governance of planned communities. And the promoters of this false happiness are at fault.

Happiness in an HOA is based upon, as any other authoritarian government, strict acceptance, obedience and conformity to arbitrary, financially oriented rules, not rules designed to foster individual, personal happiness leading to healthy community relations. In my view, such an underlying premise — conformance and obedience — is at the root of the deterioration of healthy, productive communities.

Yet, state legislatures insist that HOAs are indeed good for everyone and benefit society in general. And while they argue for the First Amendment right to free association, they fail to see First Amendment violations resulting from compelled speech — the elimination of a free choice in comparable housing as a result of mandated HOA subdivisions, and the continued promotion, support and entwinement between government and private organizations.

Those and who have the power and authority to correct this deterioration of societal and community values, and who shape public policy, have much to ponder for the new year. I hope corrective actions will come forth in the upcoming year for a better society.

While the following Supreme Court decision focused on a Midland County’s (TX) apportionment of voting districts, the reasoning applies to any local government.

With respect to HOAs, why does state government allow a devise of a questionable “informed consent” private contract to permit developers to circumvent the law as applied to local governments? Could it be that the enforcement of a coercive contract is necessary in order to obtain the compliance to the authoritarian planned community HOA government, on a nation that prides itself as the champion of individual rights and freedoms?

Excerpts from AVERY v. MIDLAND COUNTY, 390 U.S. 474 (1968)

The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious.

Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying [390 U.S. 474, 480] equal protection of the laws; whatever the agency of the State taking the action . . . .” Cooper v. Aaron, 358 U.S. 1, 17 (1958) . . . . The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.

[Now, follow this argument]

That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment. While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking
to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level.

What is more, in providing for the governments of their cities, counties, towns, and districts, the States characteristically provide for representative government – for decisionmaking at the local level by representatives elected by the people. And, not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.

We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties. 6 [390 U.S. 474, 482]

We will not bar what Professor Wood has called “the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations . . . .” R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government . . . .