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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

NATURE 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.

The HOA contribution to the decline in civic virtue

Jeb Bush and Clint Bolick, VP of Litigation at the Goldwater Institute in Phoenix and nationally recognized constitutional law scholar, expressed their concern for the loss of “basic American values.” Although presenting their solution to the dysfunctional US immigration policy[i], their concern is well suited to the impact that the defective HOA legal scheme has had on civic virtue.

A good part of the failure to provide for education in civic awareness lies in the rapidly growing residential housing industry that requires a governmental body over developers’ subdivisions that contain common elements. Some entity, if not the local municipality, must govern these common elements and that has fallen to the homeowners association (HOA) legal scheme. . . . There is no civic virtue or civil servants in HOAs, because the HOA legal structure for governance is a corporation. The equivalent of civics or civil virtue is HOA virtue, which amounts to two simple attitudes: pay your assessments on time and follow the rules. (See High Noon in HOA-Land: members who permit lawless boards to function).

Read the complete paper here . . .

[i] Immigration Wars: Forging an American Solution, Jeb Bush and Clint Bolick (Threshold Editions Div. of Simon & Schuster 2013).

signed SB 1454 violates AZ Const. that holds extraneous HOA amendments as invalid

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 20^th 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

The HOA climate is based on fears and distrust giving rise to strict enforcement as necessary for compliance

In the real world of HOA governments, the climate of the community is based on a fear and a distrust of one’s neighbors. This fundamental basis for HOAs is supported by the following commonly expressed objectives of HOAs. We’ve been told, as well as having been set down in the declaration, that the purpose of the HOA is 1) to maintain property values first and foremost, which requires the enforcement of the governing documents, and 2) to provide for the general welfare of the members in terms of rules and regulations for an orderly community. It implies that the survival of the HOA depends on an authoritarian government to coerce compliance with the objectives of the HOA state.

The climate of the HOA is formed by the attitudes, beliefs and values of its members who distrust their neighbors because their neighbors will,

1. paint their house pink, or polka-dotted,

2. repair and maintain their vehicles on their front lawns in front of their $200,000 homes,

3. not properly maintain their homes and lots as determined by the HOA,

4. refuse to obey the rules and regulations, which requires the application of penalties, as severe as may be required, to obtain compliance with the rules and regulation, and

5. refuse to make timely payments of their assessments, for which there are no justifiable exceptions or excuses.

What is noticeably absent from the purposes of the HOA government are any references to the establishment of healthy, desirable, and vibrant communities based on the US Constitution with its protection of individual liberties. Also noticeably absent from the above are any statements to the effect that HOA members are not protected by the application of the 14^th Amendment, as they would be protected if the HOA were a public entity. However, statements to the contrary have been made giving the appearance and illusion that the HOA provides the same democratic protections as found in the public domain, simply because members can vote for the board of directors. This is decidedly false!

Considering the above, the climate of the HOA is one of hostility, distrust, coercion to comply, and the fear of a decline in property values that necessitates an undemocratic, authoritarian government for its survival. But, it doesn’t have to be this way. The subdivision real estate package can exist without the HOA form of governance that is based on the distrust of its members. But, the HOA cannot exist without the covenants running with the land as found in the declarations of covenants, conditions, and restrictions.

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