Tag: democracy

HOA bills and the legislative “system”

I thought it a good time to summarize how your state legislature works. I’ve referred to the need for a champion, which implies, if not opposition, but having to deal with the legislative “system.” And there is a System. I will use Arizona as a model, understanding that other states will vary somewhat. For example, the Texas Legislature meets every 2 years. They do not use Committee of the Whole (COW) as the first Floor vote, but “second read.” California has sessions lasting for 2 years. Check your legislative website for your state’s process.

 

The System – the power of the majority party

The majority power rules and control the System. The President of the Senate and Speaker of the House determine the committees, what bills are heard where, who the Chair will be, and who are the members.

The committee chair determine whether or not his committee will hear a bill referred to it. I believe he can be overruled by a vote of the members, but that would be like going over the head of your boss, a No-No. At the request of a bill’s sponsor, he can hold the bill until the next meeting because the sponsor doesn’t have the votes. The sponsor can also “give up the ghost” and kill his bill.

Next step may be a Rules committee, a perfunctory committee supposedly passing on constitutionality, but just another place where the Chair can prevent a bill from proceeding to a floor vote.

(The Caucus vote, if passed out of Rules, is a nonbinding “courtesy” discussion meeting of the separate parties.)

Next we have what is called the Calendar, or Calendars for COW and Third Read. They are “ files” under the President’s or Speaker’s control who decide if and when the bill moves to the COW/second read vote. If passed at this point, these leaders can then decide, again, if the bill will proceed to a third read/ final vote of the House or Senate.

If passed out of the first branch, the process starts all over again in the second house.

Your champion must get support of all these players, or not run into serious opposition from the power players. He/she needs your emails and voice sent to the committee members and even to all the legislators if HOA reform bills are to succeed — especially the controversial bills. Over the years I’ve seen bills die at every one of the above stages. I have seen HOA bills held for weeks by the Speaker or President, who finally succumbed to public outcry and allowed the members to vote the issue, all of which passed with flying colors. The System is political, understanding that the majority party members also voted overwhelming to pass the bill.

At this early stage in Arizona, of the 16 HOA bills, 1 was Held, and 1 is sitting in the COW waiting for a floor vote. It had passed the committee by a 5 – 2 vote, but was objected to for a direct floor vote, which does not allow discussion. It has been sitting on the COW calendar for 3 weeks, waiting at the pleasure of the President of the Senate for a Floor vote. The bill would impose treble damages to HOA boards if the court found the lawsuit to be selective in nature against the homeowner. (Is that any worse that the right to take away one’s home for $50 after 1 year?)  Yes, discussion is important, but it must be allowed to occur if the democratic process is to work.

Yes, Virginia, there is a Legislative System.

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.

Obstacles to substantive HOA reform legislation

What comes out loud and clear, from the Arizona senatorial debate (Arizona Senators debate HOA legal status), as obstacles to substantive HOA reform legislation is the dogmatic belief by many in the righteousness of the HOA legal scheme. That the will of the people shall be allowed to prevail, without restraint of any kind, over the supreme law of the land.

Until advocates can reconcile their belief in the benefits of their HOA with the need for substantive HOA reform legislation, what can they expect of others? And that requires not surrendering to the irrational fear of losing their HOA, as pro-HOA supporters find useful to prevent necessary reforms.

Until advocates are able to get the policy makers, the legislators, to reconcile their belief in the benefits of HOAs with the need to rewrite the HOA legal concept, there will be no substantive reforms. And advocates will return year after year with their “petitions for redress” only to have their petitions “answered only by repeated injury.”

But first, they must look inward, toward themselves.

Arizona Senators debate HOA legal status

 The Voice of Times Past  and the Voice of Times Present

 

A lengthy exchange, exemplifying  the polarized views of the HOA legal concept occurred between two committee members  during the Senate VMGA Committee hearing on SB 1113, control of public roadways  (Jan. 31, 2012).  I refer to the two Senators as the Voice of Times Past and the Voice of Times Present.

Senator  John Nelson, Times Past,  speaks from the past and echoes the pro-HOA themes of maintaining property values, of freedom of contract, and unquestioned consent to agree  and full compliance with contract law.  His position speaks in favor of HOAs as independent principalities above all other laws of the land, holding that private parties can contract to avoid the Constitution and laws of the land.

I do not mean to be disrespectful,   as the Senator appears to truly believe in his position — and we all are entitled to our beliefs — yet he  has not realized the implications of his beliefs on his duties and obligations as a state senator.   He has  failed to address the consequences and impact on society of such beliefs, which have become  ingrained and dogmatic over the many years

Senator Frank Antenori, Times Present, speaks of constitutional infringements by the HOA legal concept and of violations  of our principles of democratic government by de facto  private entities unaccountable under the Constitution. These issues were  also raised by the bill sponsor, Senator Nancy Barto. 

What is apparent in this exchange is that to resolve the alleged safety issues on street parking, the HOA simply refuses to make use of the legal vehicle of seeking planning board variations, thus making this a political power issue between public government and private HOA principalities.  Furthermore, putting “we can contract to do anything we want,” even to ignore the laws of the land, is an absurdity too often used by those seeking unrestrained power, and too  often irresponsibly thrown about.  Case law has repeatedly rejected any such unqualified authority. 

(It should be noted that CAI did not speak at this hearing, and it’s member blog did not address constitutional issues of de facto private governments seeking special treatment above the laws of the land).

What  the Voice of Times Yet To Come  will have to say depends on what occurs today, in Arizona, and  in all state legislatures across the country.   Will the 200 plus year American experiment in democratic government be extinguished by a successful second, 48 year American experiment in private, authoritarian government functioning  under fascist principles?

The bill squeaked by and was passed by a 4 – 3 vote.

 The complete public video of the hearing can be found in the Arizona Legislature video archives for that hearing (click here).   Jump to 39:00 minutes for the 30 minute exchange.  After viewing the video, you will better understand how HOAs have become a second political government at the local level, and what legislative obstacles lay in the way to susbstantive HOA reform legislation. 

At about the same time as this Arizona debate, an NPR radio talk show took place  in Charlotte, NC (WFAE,  Charlotte Talks, Mike Collins, host)  that also addressed the good, the bad and the ugly of HOAs.  It is well worth listening too, as it also addresses public policy concerns. The link can be found at the  North Carolina Coalition for Homeowners Rights website.

See also, 

1.  Evan McKenzie’s Privatopia Papers contribution to the constitutional issues debate, HOA debate: illegitimate government and invalid CC&Rs contract.

2.  HOA-Land — the failure to democratize.