Virginia's SB1489: what is the state's necessary and compelling interest?

The America based on the protection of individual rights and freedoms is being replaced, as exemplified by SB 1489 (see Virginia’s HOA bill, SB1489: stands the constitution on its head), by a belief in a New America of independent HOA principalities, which admits to no protections or defense of our cherished rights and freedoms.  The principles, values and beliefs of The Founding Fathers that served as the fundamental ideal of American democracy no longer seem to have relevance, relegating American democracy to that of a myth.

To propose a bill that subverts the voice of the members within a property owners association, or HOA, a voice that is granted under the contractual agreement called the declaration, is shameful.  It violates the Bill of Rights in the Constitution of Virginia, which, in part, holds,

A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.

Section 1. Equality and rights of men.

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.

Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts . . . .

It is a very disturbing realization that these principles and values do not even get lip-service in today’s political environment.  And to think that the Virginia Constitution had served, in part, as a model for the US Constitution.

It is very disturbing to find that the impetus for SB1489, a resurrection of a defeated SB 6016, was introduced as a result of an attorney who is a member of the national lobbyist for HOAs, Community Associations Institute (CAI).  This attorney is an intervener (a third party with an interest in the outcome) in a case before the Virginia court.  As the plaintiff’s attorney stated, and which is obvious to any informed reader, the bill is an overly broad response that opens the door to other potential actions by an HOA board.  The bill would destroy any vestige of democratic functioning in the HOA, and deny the clearly stated provision in the contractual declaration that requires a vote of the members to amend the declaration. (See my Commentary link above for a more detailed analysis of this bill).

 

In fact, the CAI attorney made a poorly defined, overly broad assertion before the committee that included, There is currently no method for reformation in the Commonwealth, and there needs to be a solution for issues where one property owner controls because he has enough votes.”   As I’ve discovered, the modus operandi by many HOA attorneys is the understanding by the attorney that 1) the average homeowner is not knowledgeable in the law, 2) does not have the temperament to undertake a prolonged legal battle, and 3) does not have the funds to do so.  Therefore, we see many of these loosely worded, over-reaching statutes that favor the HOA since the attorneys well understand how to handle statutory challenges in view of the homeowner’s aversion to litigation.

 

Now just what is this astute attorney trying to say?  Is he saying that some devious person has seized control of the HOA to the detriment of the board, and that the state must help the board to restore order, the status quo?  How can one get legitimate control of the votes?  Well, that’s easy. The HOA board is by far the most common party to use proxies to support its position, and the legitimate use of proxies may be interpreted as “control the votes”. 

 

The other legitimate control of the votes usually comes from the developer who has not yet turned over the HOA to the membership, and is permitted under the declaration to have a favorable weighted voting mechanism in its favor.  So, what is this astute lawyer trying to say?

 

It can only be, as stated in my prior Commentary above, to impose the board’s will on a recalcitrant membership that opposes the board’s goals.  But, isn’t that their right under the declaration, a supposedly sacred agreement as CAI has shouted from the roof-top on many occasions?  Why the flip-flop?   

 

Furthermore, where is the overwhelming government interest to deny homeowner rights explicitly granted under a private agreement?  And, where is the necessity, not merely convenience, in order to accomplish this unstated government interest to warrant a violation of the US and Virginia constitutions?

 

This bill seeks government support by means of the courts and opens the door to state action in violation of 42 USC 1983, as it seeks to uphold an act that is clearly dictatorial and decidedly undemocratic.  All that the bill requires in order for a court to rule in the HOA’s favor is simply “a good faith attempt to amend”, period. 

 

This sponsor of this bill, for a second time, has bowed to the influence of the CAI special interests to stand the Constitution of Virginia on its head. 

The bill must not pass!

 

 

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Published in: on January 26, 2009 at 2:38 pm  Leave a Comment  

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