Four 2006 unanswered questions on HOA constitutional issues

In my last Commentary, The Lone Ranger has never stopped fighting for HOA truth and justice, CAI Editor Durso mentioned my 2006 “open e-mail questionnaire to CAI’ containing four questions.”  Below is a copy of those questions initially addressed to the AZ Legislature a year earlier.  I never had any answer, either from the Legislature or CAI, nor any debate on the issues.

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Dear Mr. Durso,

As I wrote to the legislators, I now address these questions to CAI, as a public interest organization that repeatedly lobbies every state legislature, and ask that it respond to these important issues in its upcoming article —

Replacing democratic local governments with authoritarian private governments: Is this good public policy?

At the heart of the matter is the continued replacement of democratic local government, governments subject to the U.S. Constitution and 14th Amendment prohibitions, with contractual, authoritarian private governments that are not subject to the prohibitions of the 14th Amendment.  The two broad prohibitions within this amendment are the equal application of the law and the due process clauses that are not applicable to private agreements. Or are they?

I ask the legislators, the public interest organizations and policy makers to consider the following questions:

1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

2. Is it proper for the state to permit the existence of private quasi-governments with contractual “constitutions” that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

3. When did “whatever the people privately contract” dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the “nailing to the wall”, the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?


George K. Staropoli, Pres.
Citizens for Constitutional Local Government

March 16, 2006

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Published in: on September 25, 2017 at 11:19 am  Leave a Comment  

The Lone Ranger has never stopped fighting for HOA truth and justice

Time to reflect a bit.  The following is an excerpt from CAI’s Common Ground article attacking homeowner rights advocates.

(Common Ground, May/June 2006, Christopher Durso, Editor).P1000486

CCLG’s [Citizens for Constitutional Local Government] founder and president, George Staropoli, for example, originally agreed to an interview but later changed his mind. In a brief phone call during which he’s quiet and almost courtly, he explains that Common Ground is CAI’s “house organ,” and that he’d be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context. He asks that his prolific writings on the CCLG website speak for him, although a week or two later he sends an “open e-mail questionnaire to CAI” containing four questions that sprout from CCLG’s mission, which reads in part: “To inform the public (a) of the private government nature of HOAs and their governing bodies, the homeowners association; (b) of the restrictions on homeowners’ civil liberties; and (c) of the lack of effective enforcement of state laws and the governing documents under the ‘private contract’ interpretation of HOAs.” It’s unclear how many members Staropoli has attracted to CCLG—Carpenter [Scott Carpenter, AZ CAI attorney] calls him a “lone ranger“—but certainly his approach is more philosophical than other advocates’.

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Says Carpenter: “George Staropoli believes he’s leading a revolution…. To him, this is a struggle against tyranny. And he uses that word all the time.”

According to the website, Staropoli—who launched CCLG in 2000—at one time served as treasurer of an HOA in Pennsylvania. Nothing more is written about his personal experience with associations, but today, he clearly thinks they go about things the wrong way. Or, rather, that they’re permitted to go about things the wrong way, free from the constitutionally imposed checks and balances that bind municipal governments. “When the board fines you, where do you go for your due process?” he said in a recent interview with the Middletown (Ohio) Journal. “You go right back to the same people who fined you.”

Published in: on September 23, 2017 at 5:59 pm  Comments (4)  

Is AZ ADRE violating 1st Amendment free speech on HOA public issues?

Regarding Arizona’s real estate department’s (ADRE) promotion of the HOA special interest organizations, CAI and AACM, in its Resources category on its HOA Due Process web page, there are no opposing homeowner rights views on HOA-Land.  Nada!

These pro-HOA groups sustain, and continue to offer and promote the same failed arguments and “solutions,” of the past 23 years in Arizona. They are on record opposing due process and the equal protection of the laws for HOA members. It seems that they have adopted the view that the goals and objectives of the state, meaning the HOA government, supersedes the individual rights of the people, the HOA members. (See CAI manifesto: CAI’s plan for HOA-Land in America, a commentary on CAI’s “white paper.”

At a meeting with ADRE I argued for ADRE to remove CAI and AACM from or to add references to opposing views, well supported by evidence, to its web page.  I suggested that my Constitutional Local Government or HOA Constitutional Government would provide a factual based view, and give the general public a “full disclosure” of life in HOA-Land.   Let’s be fair! Let the homeowner choose after he has all the facts and not those of self-interested private vendor groups.  This would be in keeping with ADRE’s mission “to protect the interests of the general public.”

If we are to make progress for HOA members, the policymakers move past what CAI and AACM have been saying in their voluminous promotional and marketing sayings — like its Factbook — and to what the CAI/AACM members are actually saying before state legislatures and the courts. The contradictions between the two are stark; one is talk, the other is action, as outlined in the materials presented to ADRE.

 

I am awaiting the decision of the ADRE Commissioner.  It has been a month — a reasonable time to make two line changes on their web page — since I first contacted ADRE with the above request to remove the vendor organizations, or to add homeowner rights websites as a balanced recommendation.  I hope that ADRE will act very quickly on this important request granting free speech to all sides of the controversial HOA issue.

The US Supreme Court decision in Con Ed v. Public Service Comm’n of NY (447 U.S. 530 (1980)) sheds some important light on ADRE’s unreasonable delay in acting on my request, which can only be interpreted as a denial.  In Con Ed a state agency prohibited the inclusion of political material by a public utility company in its monthly billing statements.  Among other things, the Court held: (my emphasis)

But when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited merely because public officials disapprove the speaker’s views.” (Part III(A)).

As a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . ..  To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth. (Part III(B)).

The denial of opposing homeowner rights website inclusion on its Resources web page would constitute a First Amendment violation.

Homeowners can play a significant role by speaking out.  Write about the quality of advice received from these organizations as to resolve problems with your HOA.  Was it helpful?  Were you satisfied? Please be sure to provide solid evidence – solid documentation – to support your request for help; no whining, no crying we was robbed.

Address these matters to Dan Gardner (dgardner@azre.gov), and send a copy to me at info@pvtgov.org with complete confidentiality.

Published in: on September 22, 2017 at 8:43 am  Leave a Comment  

It’s time to lower the AZ agency HOA dispute fees to that of superior court

Last month I met with Arizona’s Real Estate (ADRE) Commissioner Judy Lowe, Deputy Commissioner Louis Dettorre, and Constituent Manager, Dan Gardner to discuss what ADRE can do to help homeowners buying and living in HOAs.  As many may not know, ADRE’s involvement with HOAs increased with the 2016 re-assignment of HOA dispute processing by OAH.

Among other things, we discussed 1) a clarification of the OAH costs that warrant the $500 filing fee, and 2) ADRE’s listing of CAI and AACM (HOA managers association, a split-off from CAI in 2003) on its web page as resources (subject of another Commentary in the works).

Regarding OAH fees, with which the Commissioner had some concerns, from the very beginning in 2006 OAH was to operate on a cost recovery basis. The initial fee was set at $500 with later reviews. The Commissioner has the authority to change the fee.  (Many of the cases were filed by homeowners, mostly without an attorney.)

The requirement for this fee stemmed from the fear mongering of the special interests who claimed that the courts and OAH would be swamped with complaints. It seems that the alleged 95% good people now have turned, in a NY minute, to 95% bad people.

After 11 years in operation, we find that HOA petitions (54) amount to an insignificant .8% of all 5,251 OAH cases as reported in OAH’s 2016 report.  Is the $500 fee justified?  Consider that many of the extended cases are the result of actions initiated by the HOA attorney, which would drive up the costs of HOA claim processing. Also, OAH states that it is seeking a standard average charge-back cost to all agencies of approximately $174.  Something doesn’t add up!

In response to my Public Records request, OAH provided the following data on the costs of HOA dispute processing:

OAH FYE June 2017 totals

524 hours spent on 54 cases, or 9.7 hours per case

$36, 069 spent on 54 cases, for an average cost of $668 per case. The first half -year cost came to $750 per case, and $607 per case for the second half-year.

In addition to the hourly fees, there is an agency “flat filing fee,” sort of an overhead fee, charged to ADRE in the approximate amount of $175, which appears to be the charge-back fee mentioned above.

The Superior Court (Maricopa County) fee for filing a complaint is just $322.  Why does it cost more for OAH to handle HOA claims than for Superior Court?

After 11 years, it’s time for a thorough review of the statutes relating to HOA fees.  HOA homeowners are not getting a fair deal as set forth in the 2011 statutes reviving OAH handling of disputes. It required (Sec.4, Legislative Findings and Intent, AZ Sess. L. Ch. 185),

[O]wners are often unable to afford the cost of formally litigating their disputes in the superior court. . .. [OAH] will provide an important consumer protection for owners . . . without the expense, formality and difficulty of requiring a trial in the superior court in every instance . . ..”

By law, today, the ADRE Commissioner sets the filing fee for HOA disputes. I am hoping that the Commissioner will set things right and propose legislation to address this gross injustice suffered by the good people living in HOAs. 

Homeowners can play a significant role by speaking out and addressing this matter to Dan Gardner (dgardner@azre.gocv).  Arizona homeowners must act now!

 

Published in: on September 18, 2017 at 4:34 pm  Comments (1)  

A California true HOA Bill of Rights

CA Chapter 236 (SB 407) (2017), just passed into law.  A true Homeowner Bill of RightsThank you Senator Wieckowski.

 

The people of the State of California do enact as follows:

SECTION 1. Section 4515 is added to the Civil Code, to read:

  1. (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:

(1) Peacefully assembling or meeting with members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.

(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest.

(3) Using the common area, including the community or recreation hall or clubhouse, or, with the consent of the member, the area of a separate interest, for an assembly or meeting described in paragraph (1) or (2) when that facility or separate interest is not otherwise in use.

(4) Canvassing and petitioning the members, the association board, and residents for the activities described in paragraphs (1) and (2) at reasonable hours and in a reasonable manner.

(5) Distributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner.

(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area for the activities described in paragraphs (1), (2), and (3) of subdivision (b).

(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

Published in: on September 15, 2017 at 7:50 am  Comments (4)