Tag: linkedin

AZ looking at special taxing districts for certain HOAs

A number of legislators are behind HB2474, a bill that restricts planning boards and municipalities from mandating HOAs unless the development has one of the following: a pool, a clubhouse, a lake, a golf course, or one of a few other amenities.  If not, which pertains to those developments with just common areas or smaller amenities than those required, any proposed planned community must conform to Title 48, Special Taxing Districts, Chapter 4, Municipal Improvement Districts, or Chapter, County Improvement Districts, and be a government entity.

I have urged such an approach over the years as uses existing law and creates a government entity, subject to the 14th Amendment.  The Representatives are Townsend, Orr, Stevens, Borrelli, Boyer and Petersen.

The short bill reads:

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 9, chapter 4, article 6, Arizona Revised Statutes, is amended by adding section 9-461.15, to read:

 9-461.15. Planned communities and homeowners’ associations; limitation; municipal improvement districts

 A.     The planning agency of a municipality in exercising its authority pursuant to this title shall not require as part of a subdivision regulation or approval or a zoning ordinance that a subdivider or developer construct or establish a planned community as defined in section 33-1802 unless the planned community association owns or is otherwise liable for any portion of the costs of any one or more of the following special features:

 1. A golf course.

2. One or more lakes.

3. A swimming pool with an area of more than one thousand two hundred square feet.

4. A clubhouse or other community building that is more than two thousand five hundred square feet in size.

5. An orchard or other agricultural feature that in aggregate covers two acres.

6. An equestrian area or facility.

7. A landing strip, runway or other similar feature designed to be used for aircraft.

8. A commercial property.

9. A public or private school.

10. One or more churches.

B. For any proposed planned community that does not contain one or more special features as prescribed by subsection A of this section, the municipal planning agency shall require the formation of a municipal improvement district pursuant to title 48, chapter 4.

 Sec. 2. Title 11, chapter 6, article 1, Arizona Revised Statutes, is amended by adding section 11-810, to read: [Reads as above, except a conformity to Chapter 6 of Title 48].

 

As a reference, please see my 2004 Commentary, A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

Evan McKenzie on HOA consent, disclosure and realtors

“The typical homeowner has no idea what he is getting into — or what kind of HOA leadership he will be dealing with — when he signs a binding contract to move into an HOA-governed subdivision.”

So spoke internationally recognized and outspoken advocate for HOA reforms, Professor Evan McKenzie (author of Privatopia: Homeowners Associations and the Rise of Residential Private Government (1994) and Beyond Privatopia (2012)) in an interview for the Evansville Courier and Press (“Woman says HOA demanded microchip in her dog”).  And with respect to consent and the inadequacy of state mandated disclosure documents, McKenzie calls them “hopelessly inadequate.”  He is quoted as saying, “If (realtors) cared about this, which they don’t, they would be establishing policies.”

I’ve written on the topic of why people choose to live under HOA regimes and who remain silent. As a sample, there is the  oppressive structure of the HOA (Why do people harm others in HOAs?), the “unspoken alliance of no negatives about HOAs” (Good night and very good luck – the unspoken media HOA alliance, CA court upholds HOA suit against real estate agents), and the failure of state legislatures to uphold constitutional rights (Proposed “consent to be governed” statute, the “Truth in HOAs” bill).  One can conclude that the HOA institution is basically corrupt (as defined: impairment of integrity, virtue, or moral principle; perversion of integrity).

I have repeatedly argued for the education — the enlightenment — of the public, the media and state legislators as to the truth of the matter, understanding that the unspoken alliance is still at work.  Where there is a lack of understanding, actual or pretended, then educate as to the truth. Help others to understand.  And this enlightenment requires that advocates challenge, confront and expose the non-truths being continuously aired by pro-HOA special interests (Path to Victory at the Legislature).

Thank you Evan for your effort to enlighten others as to the reality of the HOA concept and its defects.

 

Read this highly informative article at CourierPress.com.

In a democracy approaching corporatism, HOAs are iconic

America is still a democracy, I hope, and firmly in support of the capitalistic economy philosophy – people are  free to do as they please.  This freedom rejects government restraint and relies on the competing self-interests of the people.  In simple terms, “what’s good for business is good for the country.”

But, is America going off the deep end of capitalism toward fascism?  “Fascism should more appropriately be called corporatism because it is the merger of state and corporate power.”  So said Benito Mussolini, the founder of modern fascism in 1922 Italy.   How much of a democracy can exist under a fascist system that places government power in the hands of corporations?  Just look at the fantastic wisdom of the US Supreme Court in its United decision that corporations are people and can make campaign contributions.  And how about its Kelo decision where the court redefined “government use” as “government purpose” and took away a person’s home for private corporation development.

And then there’s this thing called a planned community, with its corporate form of private government commonly known as a homeowners association.  Where law firms and property management corporations have extreme influence or almost complete control of the HOA. Where the legal structure and pro-HOA statutes favor the corporation government over the rights, freedoms, privileges and immunities of the people.

In a democracy, how could this come to be?  In a democracy the answer must lie in the will of the people that either supported this evolution, or idly stood by and did nothing.  Mayer wrote (They Thought They Were Free), speaking of the Nazi take-over of democratic pre-war Germany,  that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.”  In America today, Rev. Jim Wallis wrote in 2010 (Rediscovering Values), “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible – both financially and morally.”

It was the will of the people, the voice of the majority that spoke and elected our representatives:  the President, Congressmen, and state legislators and governors.  And it is the voice of the people to accept HOAs in spite of its rejection of our founding principles in favor of corporatism, with its self-interest motivations for profits and property values. And we have become true believers in that “what’s good for the HOA is good for the member-owners.”  Or, has the voice of the people become the voice of the corporations?

American founding principles stand at odds with the self-serving HOA corporatism of the HOA-state objectives, which prevail over our founding principles.  This is the fundamental issue to be resolved!  And it cannot be resolved without legislation that addresses violations of our founding principles as contained in American organic law – the US Constitution, the Bill of Rights, the Articles of Confederation and the Northwest Ordinance of 1787. 

In a democracy, the people must act to reject corporatism/fascism and demand conformity with American principles of democratic government. But, that first requires the election and enlightenment of representatives who understand the need to return to our founding principles. 

a sad lesson revealing the apathy for true HOA reforms

On December 21, 2012 my Petition to the White House to declare that the people living in HOAs are still citizens of this country and of their respective state (White House petition to defend US citizenship of people in HOAs) failed to receive the necessary submissions for a WH response.  That petition failed miserably, evidencing a very narrow understanding of the actions necessary for HOA reform legislation. This lack of interest and concern denied reformers an opportunity to create a dialogue with Washington on a problem facing homeowners in all the states.   

A petition related to citizenship and a united country (grant the State of Louisiana to withdraw from the United States of America )  did get the 25,000 submissions (just under 39,000 submissions) and received a response from the WH, Our States Remain United.  Shame on all those advocates seeking reforms who failed to see an important opportunity to advance national awareness of and the need for HOA reforms across the country and in every state.

Why Homeowners Associations (HOAs) should and must be made political subdivisions

Simply stated, the following questions remain unanswered by state legislatures or HOA special interests:

1.      Can a legislature delegate its functions, not government services but functions, to private entities without oversight or compliance with the Constitution, as required of all government entities?

 2.      Can private parties enter into contractual arrangements using adhesion contracts and a constructive notice consent, which serve to regulate and control the people within a territory (an HOA), to circumvent the application of the Constitution?

Failing to address these fundamental questions has permitted HOAs to exist as de facto governments functioning as a second form of political government within the US. HOAs reject the US Constitution by their actions — forget the words.  Consider the following:

1.      “A rose by any other name is a rose.”  Taxes are HOA assessments; ordinances are rules and regulations; board is the legislature/city council; government agency is architectural control committee (ACC); citizens are members; judiciary is board/ACC; constitution is the CC&Rs; laws are the by-laws; etc.

2.      State legislatures have not enacted laws that delegate their legislative functions to the HOA private entities with oversight or constitutional compliance, as required by long standing legal doctrine. 

 [i]t 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. . . .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.[i]

 3.      Furthermore, “Agreements violating constitutional provisions, county codes, and municipal ordinances are illegal to the same extent as agreements violating statutory enactments.”[ii]

4.      For those states with “home rule” laws that permit a wide range of independent law-making at the local level, the governing body remains subject to the constitution and laws of the state. 

5.      Attempts to enumerate the specific functions of an entity, which are unique to political governments and make them a government and not something else, like the archaic public functions test of 1946,[iii] fail as being contrary to constitutional law.  Compare these questionable definitive “public” functions to the legal requirements set forth in the laws of each state applicable to municipal governments.

6.      The unique factor that determines the broad concept of “government” is simply:  any governing body that controls and regulates the people within a territory is a de facto government. Take Cuba for instance, a de facto yet unrecognized government. Sadly, HOAs are not recognized either.

Modern states are territorial, their governments exercise control over persons and things within their frontiers. . . . A state should not be confused with the whole community of persons living on its territory [such as churches or corporations].[iv] 

7.      Several political scientists believe that HOAs should be declared as sui generis (one of a kind) private governments.  However, evidence based on existing HOA state laws have made HOAs an “arm of the government” (state actors) according to the US Supreme Court criteria:[v]   state protective statutes reflecting a cooperation with HOAs, through state support or coercion; by a symbiotic relationship, close nexus, or an entwinement between the state and the HOA.

In general, every special or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity for such discrimination, is unconstitutional and void.[vi]

8.      Defining HOAs as a sui generis entity without the requirement that HOAs are indeed bodies politic or state entities rejects the US Constitution. HOAs have seceded from the Union by virtue of their private contracts that do not hold the HOA governing body subject to the laws of the land. 

9.      CC&Rs are created by private parties, none being an actual member or resident of the subdivision at the time of formation, who enter into contractual arrangements that have been described by the courts as the HOA’s “constitution.”  The CC&Rs serve to regulate and control the people within a territory (an HOA), thereby circumventing the application of the Constitution and, specifically, the 14th Amendment equal application of the laws and due process protections. 

A statute infringes the constitutional guarantee of equal protection if it singles out for discriminatory legislation particular individuals not forming an appropriate class and imposes on them burdens or obligations or subjects them to rules from which others are exempt.[vii]

In order for a waiver of a constitutional right to be valid, it must be made voluntarily, intelligently, and knowingly and with sufficient awareness of the relevant circumstances and likely consequences.[viii]

 10.  The persistent and profuse arguments, by the HOA special interests, that HOAs are not governments can easily be seen as attempts to avoid HOAs being subject to constitutional conditions and restrictions that protect the people.  “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . .”[ix]

 

Further readings

Commentaries:                               

1.       The Legitimacy of HOA Governance

2.       AARP Amicus Curiae brief in Twin Rivers NJ constitutionality suit

3.       The Constitutionality of state protected homeowners associations

4.       Why haven’t the 1983 HOA problems of America II been resolved?

5.       HOA Case History: state actors or mini/quasi government

 

General reading:

1.       Beyond Privatopia: Rethinking Residential Private Government, Evan McKenzie, Urban Institute Press, 2011.

2.       Establishing the New America of Independent HOA Principalities, George K. Staropoli, Starman Publishing, 2008 (ISBN 978-0-9744488-3-1).

3.       Neighbors AT War! The Creepy Case Against Your Homeowners Association, Ward Lucas, Hogback Publishing, 2012.

4.       Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Evan McKenzie, Yale Univ. Press, 1994.

5.       Villa Appalling! Destroying the Myth of Affordable Community Living, Donie Vanitzian, Villa Appalling Publishing, 2002.

                                               

Legal Authority Notes:

[i]    Emmett McLoughlin Realty v. Pima County, 58 P.3d 39 (2002).

[ii]   17A Corpus Juris Secundum Contracts § 213.

[iii]  Marsh v. Alabama, 326 US 501 (1946); Shelly v. Kraemer, 334 US 1 (1948).

[iv]  “State,” Black’s Law Dictionary, 7th Ed.

[v]    Brentwood v. Tennessee School, 531 US 288 (2001).

[vi] 16B American Jurisprudence 2d Constitutional Law § 874.

[vii]  16B American Jurisprudence 2d Constitutional Law § 871.

[viii]  16 Corpus Juris Secundum Constitutional Law § 82.

[ix]   Community Associations Institute (CAI) amicus curiae to NJ Appellate Court in CBTR v. Twin Rivers HOA, 890 A.2d 947 (2004).