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?

Published in: on March 23, 2010 at 4:23 pm  Leave a Comment  

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