Tag: law

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.

 

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

Why should taxpayers pay private entity HOA assessments? It ain’t fair!

Good golly Miss Molly, what are we gonna do?  What are we gonna do?  If state governments refuse to pay assessments on HOA property it owns by foreclosure, how is the HOA to survive?  The “stakeholders”, which does not mean the owners but all those vendors who feed off the HOA income streams, are aghast! How are we gonna make a living?  How are we gonna make a living?  Good golly Miss Molly!

A Tennessee bill is proposing an exception to its laws to exempt the state from having to pay HOA assessments on properties that it took over by foreclosure. “But state lawmakers are considering a bill that hands those foreclosure charges to the rest of the homeowners’ association instead of the municipality. What it does is increase the cost to the homeowner.” (TN bill would pass foreclosure fees to neighborhoods). 

Um, what happened to the battle cry in favor of HOA foreclosure, “It ain’t fair for others to pay for deadbeat homeowners?”  Why should taxpayers not living in the private contractual HOA governed community, with its private amenities, pay for deadbeat HOAs?  It ain’t fair! 

As with any business enterprise, when times are good all defects are masked and hidden from daily concerns.  Policies, procedures, rules and regulations, and the legal structure and purpose of the entity can escape serious concern.  The world is good.  HOWEVER, when things start falling apart, like the financial quagmire facing HOAs, the poorly formed and drafted organizations functioning under faulty premises and legal structure start falling apart.  And this is what is happening to defective HOA legal concept.

I cannot count the number of times state legislators told homeowners that they had agreed to a contract and now that it is working against them they want the legislature change that contract. NO, was the position of the legislator.  Well, the nature of the CC&Rs contract is defective as it imposes a financial liability on the members much like a partnership with its joint and severable liability on all the partners. Also, the member liability is much like buying stock in a small closely-held business with limited ability to raise additional funds except from the members themselves.  It’s all part of the “deal.”  Didn’t the national pro-HOA lobbying organization explain that to you?

Or, were you just told that the HOA was a great way to preserve property values?

And let’s not forget that state legislatures have granted the HOA “special dispensation” in terms of special laws for a special entity – no oversight and very little HOA accountability.  They have played their part in creating the HOA financial quagmire.  Instead of a city or two going bankrupt, the state has set the stage for hundreds of communities governed by HOAs to go bankrupt. 

For the state to pay assessments would be like throwing good money after bad money.

To the Sovereign of Arizona: where are the checks and balances on HOA governments?

I found the following resolution by the Arizona Legislature to re-affirm its sovereignty over Arizona personnel and its right to serve as a check and balance on the Federal government very intriguing.  I keep thinking about why the “Sovereign of Arizona” believes checks and balances are not needed with respect to the independent, private governments known as HOAs, to which it has given its active support and cooperation.

Apparently, this concern for government checks and balances has been found not necessary when it comes to HOA governments.  Apparently, obedience to the Arizona and US Constitutions with respect to due process protections and the equal protection of the laws for citizens living within these regimes has been found not necessary.  It seems that the warnings of James Madison in The Federalist Papers, #51 have been ignored:  “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”.  Somehow average people become angels who can do no wrong when they become an HOA board member.

I would think that the citizens of Arizona do indeed need the long arm of the Federal government to serve as a check and balance since Arizona, and all other state governments, has failed to standby and to uphold the US Constitution. I think it is probably necessary for the Federal government to commandeer and nationalize Arizona personnel who participate in violating the US Constitution.

See The FEDS must restore law and order in secessionist HOA governments

  

SENATE CONCURRENT RESOLUTION 1016 (2013)

A CONCURRENT RESOLUTION

proposing an amendment to the Constitution of Arizona; amending article II, section 3, Constitution of Arizona; relating to the rejection of unconstitutional federal actions.

 Be it resolved by the Senate of the State of Arizona, the House of Representatives concurring:

 1. Article II, section 3, Constitution of Arizona, is proposed to be amended as follows if approved by the voters and on proclamation of the Governor:

 3. Supreme law of the land; authority to exercise sovereign authority against federal action; use of government personnel and financial resources

Section 3. A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.

 B. To protect the people’s freedom and to preserve the checks and balances of the United States Constitution, this state may exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the constitution by doing any of the following:

1. Passing an initiative or referendum pursuant to Article IV, part 1, section 1.

2. Passing a bill pursuant to Article IV, part 2 and article V, section 7.

3. Pursuing any other available legal remedy.

 C. If the people or their representatives exercise their authority pursuant to this section, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.

 2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.