Tag: constitution

Does civil government rule or does it submit to private HOA groups?

Dear Arizona Senators,

I continually am amazed at the opposition to this bill and the mistaken belief that any private contract can supersede legitimate local government. We all know that there is no absolute right to private contracts! HOAs are ignoring their role in a democratic society to obey the rules, as they like to say about homeowners in HOAs. They should follow the rules of this society and go to the planning board for a variance. Like they repeatedly say, “Homeowners can go to the courts, to agencies, to get a fair deal, etc.” but that’s not for the HOA that insists on making their own rules. It is simply a power play as to who rules the municipality.

The legislature has no choice but to uphold public government authority. If problems exist or changes are desired, since the HOA does not own the public roadway, the HOA can do what all citizens are entitled to do, go to their planning board and ask for a variance. The fact that the initial planning board approved these private roadways speaks to the retention of public government authority, otherwise it could have required private streets.

Please bear in mind, since CAI loves constitutional challenges as it fought over the proper delegation of authority to DFBLS, the court ruling in McLoughlin v. Pima that held,

However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control

and

The legislature cannot abdicate its functions or subject citizens and their interests to any but lawful public agencies, and a delegation of any sovereign power of government to private citizens cannot be sustained nor their assumption of it justified, (Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (Ariz. App. Div. 2 2002), ¶ 7).

HOAs have usurped and assumed public government functions! And we all know accountability to and proper supervision by state the does not exist with HOAs to meet this constitutional requirement. They cannot have their cake and eat it, too! They cannot demand special consideration not to be held accountable and then do as they please.

Please make it clear to all persons that we are one state, indivisible with liberty and justice for all.  Please pass this important bill.

Note:  This bill, SB 1113 and its House duplicate, HB 2030, simple reassert public government control over public streets within an HOA subdivision.  HOAs have fined homeowners for any car parked in front of their homes.

Is there a CAI game plan to rewrite HOA CC&Rs to restrict member voting powers?

It appears to me that the 2012 CAI game plan is to completely rewrite the CC&Rs. This makes it about 1/2 dozen cases that I’ve heard in the past 6 months, and all seem to restrict the powers of the homeowner by not allowing homeowners to vote on important issues.

As an example, the current LA Times HOA column by Donie Vanitzian, “Homeowner association can’t adopt new bylaws without owners’ OK”,  deals with a question of a rewrite of the CC&Rs with provisions to exclude homeowner voting on certain issues involving IRS overpayments. This excellent article touches upon a serious move by  attorneys to further entrench the board of directors as a dictatorship. BEWARE!

One malicious rewrite is to permit minority voting control for assessments, amendments to the CC&Rs, and taking on outside loans/debt (CAI attorney). Minority control comes in the form of, for example as such a bill mandating minority rule was defeated in Arizona last year, a 2/3 vote of those in attendance with a 50% quorum, which gives 1 /3 vote to approve issues. (CAI attorney sponsored).

Now, they are going directly to the members who are well known to be apathetic and there’s a very good chance that they will sign on without even reading the details. One rewrite includes a 50% reduction in the quorum until a quorum is met, which would allow the political machine to adjourn the meeting and recall it every 5 minutes until they win. A second method, as I just witnessed, is to permit a 2/3 vote of the board to settle matters in the event that a quorum is not attained at the second meeting. (CAI attorneys).

In Arizona, SB 1476 would put a stop to CC&Rs that ignore member voting on CC&Rs amendments, and other restrictions on board acts to quash democracy in HOAs.. Minority rule, especially with the well know abuse by HOAs, is a very dangerous power as it would allow the political machine, the clique in power, to completely alter the CC&Rs o completely ignore any voting by the members, even to allowing future directors to be appointed by a “select” committee of current board members. And all would be legal, according to numerous court decisions, so long as the procedures specified in the CC&Rs are followed. Period!

What we are seeing here is CAI attorneys acting to promote seditious acts that undermine our Constitution and democratic society with its basic principal of majority control.

What we are seeing here is CAI creating and establishing HOA fascist governments where the HOA state objectives are first and foremost — to support the HOA corporation aided and abetted by corporate interests – the attorneys and management firms, the “hired hands.” The second part of the fascist form of government, in order for it to succeed, is the need to suppress individual rights and freedoms as we see with HOAs, and as we heard from CAI, “the unwise extension of constitutional rights to the use of private property by members . . .” (CAI amicus brief to NJ appellate court in Twin Rivers).

WAKE UP HOMEOWNERS! WAKE UP! YOUR PRIVATE PROPERTY HOME IN AN HOA IS A MYTH, AND ALL YOU OWN IN YOUR HOME IS THE RIGHT TO MAKE HOA ASSESSMENT PAYMENTS.

The ‘voice of the people’ must muster against the Constitution – including HOAs

The Ninth Circuit Court of Appeals (CA plus) rejection of the voice of the people, Proposition 8, same sex marriage, demonstrates that acts and votes by the people must stand muster against the Constitution. And that was a majority voice. “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause,” [Judge] Reinhardt said.

CAI— the national, pro-HOA lobbying trade group — and other pro-HOA stalwarts have repeatedly argued that the voice of the people, the members of an HOA, under a private agreement, expressing the alleged voice of the people because they live there, should prevail regardless of the Constitution. Their rationalization is, “better landscaping makes a better America.”

In effect, they ignore and reject the Constitution. In effect they argue for, encourage, promote and incite sedition against the lawful and legitimate government of this country and the states.

The government cannot meet the strict judicial scrutiny for the surrender of private property rights in order to allow current statutes to remain.  Our government cannot claim, “I didn’t know.”  There is no legitimate justification for the denial of the equal application of the laws and due process protections for citizens living in an HOA. Unless, of course, for national security reasons to protect against terrorism.

KY legislators allow HOA private contract to determine public policy

This failed bill reflects the facts of life that HOA private agreements control the public policy for all citizens of a state. Read this simple bill. It is disgraceful!

In Arizona, the Senate debated such unconstitutional powers of private government HOAs over regulating public streets. (See Arizona Senators debate HOA legal status and The power of private HOA contracts, and other “voices of the people”). HOAs have become the second form of local political government in this country, and have been accepted and supported by state legislatures in violation of their oaths to support the US Constitution.

This bill, an emergency bill for a disabled boy who lives in an HOA, whose parents built a play house in their backyard, without HOA permission, was rejected with 6 out of 14 committee members not voting. I believe the KY legislators caved in to the powers of the HOA industry, and. shamefully took no sides. Disgraceful!!

AN ACT relating to the protection of disabled children.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

âSECTION 1. A NEW SECTION OF KRS CHAPTER 382 IS CREATED TO READ AS FOLLOWS:

(1) Any owner of real property used as that person’s actual residence shall have the right to alter or construct on that property any structure reasonably necessary or convenient for the accommodation or therapy of a physically disabled person residing on that property who has not reached the age of majority, provided that the alteration or construction is recommended by a physician for the accommodation or therapy of the disabled person and the alteration or construction does not otherwise violate local, state, or federal law.

(2) The application of any property agreement or provision arising by deed, covenant, servitude, contract, or other instrument or agreement that would limit the rights granted by this section is hereby declared to be contrary to the public policy of the Commonwealth and any attempted application of these provisions in violation of this section shall be void and unenforceable.

âSection 2. This Act shall be known and may be cited as Cooper’s Law.

âSection 3. Whereas the immediate effectuation of the fundamental rights created by this section is necessary to protect the physically disabled children of this state from pending harm and no good cause exists for delay, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

The power of private HOA contracts, and other “voices of the people”

A scenario, not so hypothetical, and only to emphasize my point.

Suppose a group of ethnic people in a subdivision draft a set of “mother country” laws to govern the community. That among these contractual laws, by virtue of just remaining within the community and not moving out, are covenants that concern the proper treatment of marriage, of women, and of children. Anyone entering into the community is held subject to the community laws and Mother Country punishments. Will this private contract prevail over US law? Why not? HOA contracts do. What’s the difference?

Now suppose a group of homeowners living in an HOA do the same thing? Suppose they argue, as in the Dec. of Indepen., that the HOA government is illegitimate and invalid for various reasons including contract fraud, unconstitutional, and contrary to public policy. That they therefore reject the HOA government. Which contract shall prevail? The Mother County contract or the HOA? Can the HOA claim that their contract is superior to the will of the people in this group, as they have done in turn with civil laws? What’s the difference? Who is right?

Is this country, and your state, under the rule of law or the rule of man?  Where any group can write an agreement to circumvent the US and state constitutions.