AZ OAH adjudication of HOA disputes held unconstitutional

  

What do these book titles have in common?

 

1.  The Case Against State Protection of Homeowners Associations (2003).

2.  Establishing the New America of independent HOA principalities (2008).

 

 

They reflect the reality of the public policy in support of the privatization of government functions, not services, to HOAs without subjecting them to the 14th Amendment as are all other government entities subject.  Today, in Arizona we see another prime example of this public policy toward homeowners living in HOAs, this policy that  “You are on your own.”

 

On October 2nd, the superior court appeal decision of the OAH case (See OAH-07-029 update: HOA appeals that OAH is unconstitutional) was handed down, declaring the DFBLS/OAH enabling statute unconstitutional.  See court decision: Troon Village v.Waugaman  See Attorney General’s brief in support of constitutionality.

 

On October 7th, calls to DFBLS on HOA complaints resulted in a statement that DFBLS was not hearing complaints due to receiving a decision from the court that the law was unconstitutional.  After several calls by several persons getting several DFBLS employees, I was finally told that the Director said not to accept anymore HOA complaints.  He was attending a funeral.  This is a unilateral action against the people of Arizona and a violation of due process.

 

Viewing the department’s web page shows no notice or advisory to the effect of:  As a result of a trial court decision declaring the HOA statute unconstitutional, we are temporarily suspending accepting HOA complaints.  We have referred this matter to our attorney, the Attorney General, for guidance as to how we are to proceed.  This would have been the “upfront” approach to serving the public. 

 

So, homeowners are in a limbo state waiting to see what the AG will do. Will he appeal the decision?   Will he defend the legislation, as earlier, as constitutional?  Or will he defend the DFBLS decision not to hear any further complaints, and that the people should go back and get proper legislation?  In the past, repeated appeals to the AG for consumer protection enforcement against HOAs resulted in the same latter response: get new laws. 

 

Who is defending the people, the citizens, the homeowners, against authoritarian HOA principalities?  “We must make the injustice visible” said Gandhi.  Homeowners and everyone interested in preserving fundamental American vales and beliefs in justice, fair play and the equal protection of the law must speak  out — to the AG, to their legislators, to the media.

 

 

In February  2007 we saw another instance whereby the DFBLS Director took independent action to deny homeowners due process of law.  He took it upon himself to raise the filing fee from $550 to $2,000. After a substantial uproar, the single count filing fee was returned to $550.  See Arizona HOA complaint filing fee returns to $550.

 


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Published in: on October 8, 2008 at 2:36 pm  Comments (2)  

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2 CommentsLeave a comment

  1. […] See the history presented in AZ OAH adjudication of HOA disputes held unconstitutional. The decision in Waugaman was ruled not binding by the AZ Supreme Court and it could not binding […]

  2. Notwithstanding the judiciousness of Downie’s decision in Troon Village v. Waugaman/DFBLS, what might Arizona’s Solicitor General say about the DFBLS’s decision (based on a Lower Court of Appeals decision) not to accept further petitions re homeowner association contested matters in contravention with A.R.S. § 33-1803(E), “At any time before or after completion of the exchange of information pursuant to this section, the member may petition for a hearing pursuant to section 41-2198.01 if the dispute is within the jurisdiction of the department of fire, building and life safety as prescriber in section 41-2198.01, subsection B?”


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