Tag: linkedin

Declaring the HOA as a legitimate government

The following is a model bill that would place all homeowners associations under the 14th Amendment and state laws, thereby bring the equal application of the law to all citizens within the state living or not living in an HOA.  This model bill would go a long way to removing the second form of local political government in this country, while retaining the beneficial features of planned communities.
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“It is the intent of the Legislature that planned community and condominium associations, being private, contractual de facto governments, be subject to the same public laws governing local public governments and entities as all legitimate government entities are so required.  These associations would be subject to, including but not limited to, fair elections processes, due process protections by means of independent tribunals, and with respect to its officers and directors, to the equivalent laws and penalties as are mayors, council members, and agency/department heads.  The Legislature affirms, for all to know and understand, that the US Constitution is the supreme law of the land.
 
“A municipal planning agency or other agency responsible for the approval of the development of a residential subdivision may approve a subdivision development that imposes a homeowners association, provided that the Declaration of Covenants, Conditions and Restrictions contains the following:
 
 
“Association as a public entity. 
 
“Anything in the governing documents to the contrary notwithstanding,
 
“1.  it is understood and irrevocably agreed to by the Declarant and members of the Association that,  for the purposes of the application of the Fourteenth Amendment to the US Constitution,  the Association is a public entity, and is subject to the US and Arizona Constitutions and to the laws of the State of Arizona governing public entities. 
 
“2. that the Association may exercise the powers granted to it in the governing documents provided that any such powers are consistent with applicable public law.
 
“3.  That the members of the Association may waive or surrender their rights, privileges and immunities that they possess as citizens of the State of Arizona, provided that such waiver or surrender  is consistent with the public laws of the municipality and with the constitutional laws governing the legitimate surrender or waiver of these rights.
 
“4.  Until such time as state agency consumer warning and/or advisories are provided to prospective buyers, as the equivalent of the securities “red herring” documents since buying a home is similar to the purchase of a privately held business, an implied surrender or waiver of the rights indicated in (3) above shall not be construed as a surrender or waiver of any such rights, privileges and immunities.”

public streets: the battleground for private or public government control

 
 
 
 

House Bill HB 2153, sponsored by Rep. Nancy Barto, seeks to retain control of public streets under legitimately recognized local governments, the towns and cities.  The HOA special interests, and misguided supporters claiming the unique right of an unregulated “local voice of the people”, and further claiming a fully knowledgeable and freely given consent, without any misrepresentations, have raised a safety issue with respect to parking on narrow streets.  The Mayor of Glendale, AZ opposes this bill for safety reasons, too.  (See AZ Mayor supports HOA control over public streets in her city).
 
As to safety concerns, which apparently have been ignored during all the years that these private streets have been in existence, there are existing legal mechanisms by which community members can address their concerns on a case by case basis.  First, on an individual basis, upon legitimate petition, the town/city can declare any of these streets unsafe, even though the planning board had approved them, and  then restrict parking after a due process ordinance hearing, if it so chooses. Second,  the HOA can petition to takeover the public streets form the town, legitimately, and be responsible for street maintenance, in accordance with state laws.  You know, like the purchase of Louisiana and Alaska.
 
As to the real opposition by the HOA special interests, this bill would explicitly deny these private governments from encroaching on and usurping civil government powers, and remove any usurpation of unconstitutional special privileges and immunities. While we have been repeatedly told by the special interests that HOAs are not mini-governments nor quasi-governments, but businesses, the real truth is that they function as de facto governments.  The one unique characteristic of a de facto civil government — political government — distinguishing it from other forms of non-political government lies in its control and regulation of the people within a territory.   It’s that simple.  And to be a de facto government, as are HOAs, the government does not have to be recognized by another entity, as we see with Cuba.
 
HOA supporters turn the Constitution on its head by holding that any private agreement to govern a territory, and a subdivision or condo qualifies as a territory, is supreme over the Constitution since the 14th Amendment does not apply to private entities. And that this agreement is sacrosanct and untouchable by the police powers of the state, but not by the HOA. The HOA is allowed to alter this agreement without the homeowner’s consent. Under this agreement, the consent to be governed and the surrender of constitutional rights and other privileges and immunities of the State are upheld by a mockery of justice and a perversion of democratic principles.
 
An agreement in which homeowners are bound, sight unseen, by a simply a filing to the county clerk’s office.  In which the constitutional requirement of an explicit consent to the surrender of these rights is ignored. In which these covenants are subject to interpretation and clarification by the courts who are making new law almost every day. In which covenants are held to be binding on the homeowners even though they are deemed invalid by the restatement of property, being as they are unreasonable, against public policy, or unconstitutional. This is life under the new political, private government of the HOA that is held superior to local public government.
 
In essence, the HOA functions as an unrecognized independent government, a principality indeed, within the State of Arizona and within the territorial boundaries of the municipality.  The existence of these separate forms of political government,  with their non-delegated authority and powers to do act in the place of constitutional government, with tacit legislative support and cooperation,  has created a New America. This New America repudiates the once supreme US Constitution with all its protections of individual rights and freedoms. And that cannot be allowed to continue!
 
Not to pass HB 2153 would be to accept the invasion by the HOA into the sovereign territory of the State of Arizona, and a recognition of an non-delegated constitutional power and right to govern the people within this state.
 
Who controls public streets? The legitimate municipality or the HOA?

 


 Please see the Sept 2009 Commentary on municpality – HOA synergies promoted by an alliance between CAI, the national pro-HOA lobbyist that is opposed to constitutional protections for homeowners, and 11 Arizona municipalities:  Is CAI seeking HOA – municipality synergies?

AZ Mayor supports HOA control over public streets in her city

 
Arizona’s HB 2153 is a simple assertion of the municipality’s jusridiction and authority, as the legitimate civil government, over the public streets in or not in an HOA. 
 
33-1817. Community authority over public roadways
NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS, AFTER THE PERIOD OF DECLARANT CONTROL, AN ASSOCIATION HAS NO AUTHORITY OVER AND SHALL NOT REGULATE ANY ROADWAY FOR WHICH THE OWNERSHIP HAS BEEN DEDICATED TO A GOVERNMENTAL ENTITY.
 
The Mayor of Glendale, AZ seems to have forgotten her obligations and repsonsiblitis to her constituents and her oath to uphold the Constitution.  The City of Glendale supports the pro-HOA national lobbying group’s education (CAI education at the HOA Academy) for directrors and homeowners on how to live in an HOA without gertting into trouble.  In opposition to the bill, citing letters from constituents to her and not to the legislators, she sent the following email to the legislators:
 
  
Subject: Opposition to HB 2153

 

 Elaine M. Scruggs
Mayor, Glendale AZ

Honorable Senators,

    I am writing to request your vote in opposition to HB 2153.  The reasons for opposing HB 2153 are (1) its consequences will present public safety hazards in our neighborhoods and (2) it is a violation of individual private property rights.

    PUBLIC SAFETY HAZARDS.   Modern neighborhoods are planned with concentration of densities in various locations.  This is especially true in master planned communities, which are the norm today in most cities and towns.   The results are that at least some of the areas in master planned communities (and sometimes all areas) consist of very small lots on curvelinear streets with minimal space between driveways of adjoining parcels.  Lots are often 5000 sf meaning 50’ wide and 100’ deep.  There is simply no room for vehicles larger than a standard sedan to fit between driveways.  There certainly is no room for such vehicles to be parked across the street from each other.  Prohibiting HOA’s from having any control over usage of streets that have been dedicated to a municipality means that actions HOA’s will no longer be empowered to regulate safe usage of those streets;  preserve quality of life for the people living in homes affected by lack of control; nor maintain the rights of those people who have purchased homes with understanding that there would be control of safety and welfare.

   HB2153 interferes with neighborhood peace and quality in 91 cities and towns without any knowledge of lack of workability/feasibility of such a “one size fits all” legislative action.

    VIOLATION OF PRIVATE PROPERTY RIGHTS.   All members of HOA’s purchased their property with clear understanding of the Codes, Covenants and Restrictions that regulate residence in the HOA’s.  For many the presence of an HOA was a requirement in their home/neighborhood selection.   Many, many residents of Glendale have expressed their extreme concern and displeasure that their private contracts, entered into with full knowledge, executed and recorded, are now being changed without any consideration of their willingness to accept such changes.   Simply stated, people feel they are having their private property rights taken away without their approval.  

   I have heard from my constituents.  They are also your constituents.  I am forwarding their concerns to you and request your favorable consideration of their very serious concerns.

 

Respectfully,

 

Who gets sued in the event of an accident on the public street?  The HOA or the city?  Who gets fined by the HOA, that includes huge attorney fees as part of the fine, when some neighbor’s visitor parks in front of a another homeowner’s house?  Since it can’t be the car owner, the HOA generally fines the innocent homeowner.  Does the HOA ask the police to get a license check of the car owner, a violation of the law?

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Historic Radburn Assn: does not need to adhere to democratic principles

In a continuation of constitutional protections first raised by the same homeowners’ attorneys as in Twin Rivers[i], Frank Askin of ACLU and Renee Steinhegan of the New Jersey Appleseed Public Interest Law Center, the homeowners argued in Radburn[ii] that “the principles of representative democracy require the Association to allow all Radburn homeowners to nominate candidates to serve on the Board.”  The ACLU brief argued, that

 [i]t is essential to the well-being and democratic rights of the New Jersey residents who live in common interest communities that this Court repudiate the trial court’s holding [in this case] that electoral procedures that `offend[] pure democratic sensibilities’ are acceptable under” the law.

 And the trial judge reflected that, “[t]here is no doubt that the current nomination procedure offends pure democratic sensibilities.” and that, “absent any specific legislative authority, he could not impose a strictly democratic nominating procedure.”  The judge further added insult to harm, completely contradicting the CAI propaganda that HOAs are the best form of direct democracy:

Characterizing Radburn’s current system of nomination as oligarchic or paternalistic or elitist or being out of step with the times does not, in my view, render it illegal . . . . It is not for the Court to say whether the system is wise. 

Furthermore, as I have pointed out in the past that the Restatement of Servitudes, while providing some protections and guidelines for HOA governance, is essentially a pro-HOA treatise that even recommended that equitable servitude law should prevail over any conflicts with constitutional law.[iii]   Yet, the court agreed that election procedures must simply be reasonable,

the Restatement provides that an association’s “election procedures must provide a reasonable opportunity for eligible members to become candidates for election and to make their views known to the electorate, and a reasonable opportunity for eligible voters to cast their votes.”[iv]

rejecting the homeowners’ argument,

“they [the homeowners] compared the importance of their voting rights within the community to their “voting rights in any public elections” and contended that “constitutional provisions regarding voting should be expanded to include . . . homeowner’s associations.

with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”  and with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”

And adding more insult to injury, offers an editorial comment,

Here, while plaintiffs’ arguments have surface allure, we are mindful that all Radburn owners agreed to be bound by the Declaration of Restrictions, which neither guarantees membership in the Association nor references any rights with respect to the nomination and election of trustees. 

Please understand that the court’s support of pro-HOA laws, the restatement of servitudes, the placement of private contacts, the Declaration,  above constitutional law has created a public policy in favor of a second form of local American political governance, the HOA.[v]  And the HOA is held superior to the once supreme law of the land, the Constitution.

Notes

[i] Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007).  See critique of this opinion: The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[ii] Moore v. Radburn, A-4284-07T2, N.J. Super. App. Div, March 18, 2010 ( See  http://www.leagle.com/unsecure/ page.htm?shortname=innjco20100318252).

[iii] Restatement Third, Property: Servitudes, § 3.1, comment h, AMR 2002.

[iv] Id, § 6.16, comment c.

[v] See The Foundations of HOAs, Part III. American Political Governments: HOAs under servitude law & local government under the Constitution (http://pvtgov.org/pvtgov/downloads/hoa_history.pdf).

Historic Radburn Assn: a second form of American political government

The appellate court of the NJ Superior court rendered its opinion in the Moore v. Radburn[i] case dealing with a number of legalities with respect to the application, wording and interpretation and construction of NJ statutes and the Radburn Declaration.  I will comment separately on the court’s opinion with respect to the application of democratic principles of government to this historic association. 

In reading this opinion, I was struck by the depth and extent of arguments and legalities relating to the governance of this territory, a subdivision under equitable servitude covenants, contrasting and comparing the Constitution, federal and NJ, the laws of NJ applicable to public entities, and the NJ condo/HOA acts and the private agreement Declaration.  The opinion is replete with references and citations to PREDFDA (Real Estate Development Full Disclosure Act), N. J.S.A. (NJ statutes), and the Radburn Declaration of Restrictions, and the court’s reconciling conflicting or vague wording and intent. 

What was happening was the application of the Radburn “constitution” and state laws that recognized and protected these independent, private governments not subject to the laws of NJ governing all civil government entities.  In short, there was the acceptance and recognition of a second form of local political governance[ii], protected under special laws granting special immunities and privileges to the association.  And these special laws are allowed to conflict with civil government laws and democratic principals, especially under the basic misconception that private agreements can supersede the Constitution when it comes to HOAs.[iii]

Issues like, “it reflects the homeowners’ view that many residents want equal membership, especially given that they are compelled to support the community“, and “The trial judge concluded that, absent any specific legislative authority, he could not impose a strictly democratic nominating procedure” recognized and accepted this second form of local political government contrary to the “supreme law of the land.”

America is no longer under the rule of law, but under the rule of man when private parties are allowed to bypass the contract between the people and the government as set forth in the US Constitution.  The intent of that contract can be further found in the Declaration of Independence, the Bill of Rights, John Locke’s The Second Treatise of Civil Government, and more.

[i] Moore v. Radburn, A-4284-07T2, N.J. Super. App. Div, March 18, 2010 ( See  http://www.leagle.com/unsecure/ page.htm?shortname=innjco20100318252).

[ii] See generally, Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs.

[iii] See generally, Part 2 – Is there an ideal HOA constitution?