Organic law is the fundamental basis of a government. The Homes Association Handbook and UCIOA constitute, in my view, the organic law for HOA governed planned communities. In contrast, the U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi). The organic laws of HOA-Land are replacing the organic laws of the US as applied to local government.
How many times have homeowners sought justice before the legislature only to be told that they have recourse to remedy any slights by “voting the bums out”? Yet, when the time came to put some teeth into fair elections laws for HOAs, laws that would allow a fundamental function of a democratic government to work properly, the Arizona Legislature answered with a resounding NO! (21 – 9 final Senate vote on HB 2160). Where is the justice? And justice is the hallmark of a legitimate government.
The Arizona Legislature, for the fourth or fifth year, obstinately refused to tell HOAs hands off regulating public streets, even with respect to parking cars protected by municipal ordinances. Maricopa County Sheriff Arpaio, who on numerous occasions vehemently stated that he upholds all the laws, rejected policing public streets in HOA-Lands. SB 1113 died, and HB 2030 is sitting in limbo waiting for a floor vote for final acceptance.
As of this date, only 2 bills of the 19 HOA bills were sent to the Governor, and one was vetoed as “too confusing” for the HOA board to deal with. HB 2484, which was amended by the conference committee to make it more HOA attorney friendly, which means more homeowner unfriendly, is now a “NO” bill. Of the 5 Arizona HOA bills in this session that provided for penalties against the HOA governments, none were found acceptable: HB 2160, HB 2484/SB 1468, HB 2455, HB 2731, and SB 1240.
The HOA can do no wrong
It is quite evident that HOAs are de facto state-protected “sanctuaries” — de facto independent principalities by the failure of legislatures to pass enforcement bills against HOA board violators. The HOA is treated by the legislature like the sovereigns and kings of long ago – the HOA board can do no wrong, no need for checks and balances, and no need for accountability. It appears that the HOA boards have become Godlike in the eyes of the legislators!
And everywhere the public interest people, the legal-academic aristocrats and current day Philosopher Kings, who clamor for individual and private property rights see no evil, hear no evil, speak no evil. It appears that, “unaccountable HOA government is better than public government with its protections,” has become their dogmatic principle. The Goldwater Institute promotes local government by means of restrictive covenants. “A model law authorizing a transition from government-controlled local zoning and planning regulations to private restrictive covenants.” (See the 2011 report, Model Legislation, Decentralized Land Use Regulation Act).
The social contract is disappearing
It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years ago — that loose collection of colonies that our Forefathers rejected as unworkable. And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature. The Social Contract (“Man was born free, and he is everywhere in chains”) of Rousseau and John Locke has been slowly falling by the wayside, little by little.
The social contract theory of government maintains that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept corresponding duties to protect themselves and one another from violence and other kinds of harm. The US Constitution and all state constitutions are examples of the social contract theory, as opposed to the various HOA statutory Acts that are based on the Uniform Common Interest Act (UCIOA). UCIOA has served for state laws in a handful of states, while other states have modified it somewhat and still others used it as a basis for their statutes.
The initial UCIOA of 1984, revised in 2008 with a questionable separate and detachable model Bill of Rights Act, flowed from The Homes Association Handbook of 1964, that joint effort by FHA, ULI (formerly the National Real Estate Foundation), and NAHB. (The Handbook was prepared with the “collaboration” of such entities as, the Veterans Administration, The Office of Civil Defense, and the Public Health Service).
How did it happen?
Milton Mayer best describes what is happening in America when he sought answers as to why the good, average people of Germany let the Nazi Party take control prior to WWII. His words are applicable to today’s HOA-Land. In 1995, in They Thought They Were Free, he wrote,
What happened was the gradual habituation of the people, little by little . . . . This separation of the government from people, this widening of the gap, took place so gradually and insensibly, each step disguised. . . . [Mayer believed that the good people went along] in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.
Welcome to the New America of HOA-Land
And you’d better believe it!