November 18, 2010
Mr. Brian Hebert
California Law Review Commission
4000 Middlefield Road, Room D-1
Palo Alto, California 94303-4739
re: Study H-855
Dear Mr. Hebert:
I am quite disappointed with the Commission’s continued effort to replace the Davis-Stirling using a carbon copy with revisions dealing with the minutia of CID operations. And still refusing to recognize CIDs as de facto governments, much as Cuba is an unrecognized but de facto government. Furthermore, CLRC has seen fit to retain the placement of these special laws for the governance of communities under the Civil Code.
It appears that the special interest agenda, promoted by the national lobbying trade organization, Community Associations Institute (CAI), still dominates the Commission’s thinking. Is the Commission aware of CAI’s repudiation of the US Constitution when it wrote in its amicus brief to the NJ appellate court in Twin Rivers that, “In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . ” ? Committee For A Better Twin Rivers v. Twin Rivers Homeowners Association (TRHA), Docket No. C-121-00, 2004.
Davis-Stirling and the Commission’s proposed rewrite continue to reflect the State’s exercise of “coercive power”, and “significant encouragement, either overt or covert” with regard to CIDs. The CID Laws portray the CID in a “symbiotic relationship” with the state, “entwined with governmental policies,” and the state government is “entwined in [the CID’s] management or control.” Such conditions give easy rise to declaring the CID as a state actor. (See the summary of state action criteria as set forth by the US Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 2001).
I cannot understand why the Commission continues to permit agreements by private parties to create local, private governments that are authoritarian and that deny homeowners their rights and freedoms to which they would otherwise be entitled. These “declarations” and CC&Rs are just that – devises to circumvent the application of constitutional protections and prohibitions with respect to local communities. The unsuspecting public is bound to these so-called agreements by virtue of taking hold on their deed sight unseen, without ever having to read, understand or sign these CC&Rs. The filing of these CC&Rs alone are necessary and sufficient to bind the homeowner, under servitude laws, and not contract law; where the legal-academic aristocrats offer advice that if a conflict exists between servitude law and constitutional law, servitudes law should prevail. (See Restatement Third, Property: Servitudes, § 3.1, comment h).
It is even more disturbing when existing California law, and similar laws in other states, permit the ability to attain the advertised benefits to the greater community of California and to the local CID community under municipality laws. In general, they are the special taxing district laws, and in California they are the District and Community Service District Codes (see Government Code, Title 6, §§ 58000 and 61000 et seq. below for the relevant excerpts). If town hall democracy, local autonomy and the “voice of the community” are indeed the objectives of good government, then the District Code will meet these objectives, where the replacement of Davis-Stirling is nothing more than a top-down imposition on the local community of special laws for private organizations. The CID would be subject to the 14th Amendment as are all other public entities, and the laws of the land would indeed be equal for all people.
I outline the simple method for accomplishing the transformation of CIDs to taxing districts in Chapter 2 of
Understanding the New America of HOA-Lands (attached for your edification and convenience). Chapter 3 explores ideal HOA constitutions and Chapter 4 is a lengthy discussion of the two forms of American political government: HOAs and public entities.
The Commission should cease and desist its current efforts to further promote the establishment of the second form of American political government, the CID, and return to supporting the principles of democratic government under the US and California Constitutions.
George K. Staropoli
Citizens for Constitutional Local Government
California Government Code Title 6, Districts, Division 1, General, § 58000 et seq., and in particular Division 3, Community Service Districts, § 61000 et seq. as relevant.
(a) The Legislature finds and declares all of the following:
(1) The differences among California’s communities reflect the broad diversity of the state’s population, geography, natural resources, history, and economy.
(b) The Legislature finds and declares that for many communities,community services districts may be any of the following:
(1) A permanent form of governance that can provide locally adequate levels of public facilities and services.
(3) A form of governance that can serve as an alternative to the incorporation of a new city.
(c) In enacting this division, it is the intent of the Legislature: (1) To continue a broad statutory authority for a class of limited-purpose special districts to provide a wide variety of public facilities and services.
(3) That residents, property owners, and public officials use the powers and procedures provided by the Community Services District Law to meet the diversity of the local conditions, circumstances, and resources.