Rebuttal to sponsor’s interpretation of AZ SB 1240

Dear Senate Rules members,

In 2013 when Senator Barto finally got this public parking issue, SB 1278, put into law (Ariz. Sess. L. Ch. 103), I argued that the HOA should go to the planning board and get permission.  This is apparently the sponsor’s interpretation of his broadly and loosely worded SB 1240 as he stated at the Feb. 1, 2017 Government Committee hearing.  “Go to the town council. . .  and convince them that there is a need for restrictions . . .. So, public streets are to be governed by public bodies.”

As SB 1240 is currently written it is contrary to the above statements by Kavanagh.  Kavanagh’s interpretation is an overly simplified interpretation of the bill.  The bill implies that the public body still governs the public street and can pass an ordinance or variance to accommodate the HOA’ wishes, all according to state law.

However, the bill does not speak of ordinances, as Kavanagh implies, but of a grant of unspecified HOA authority and a grant of unspecified HOA regulation of public streets. It allows for granting far more power and authority to the HOA than ordinances. The HOA is a private entity not subject to the state constitution as are local government entities.  As written, it is an unconstitutional delegation of legislative authority to private HOAs.

For example, SB 1240 could allow for an HOA to enforce speed limits on public streets within the subdivision. More horrendous, it could permit the HOA to detain the public for violations, a police power reserved to public governments.  What else will this bill permit and grant  to HOA private governments?

This bill is also superfluous — not needed – as the right to file for variances with the planning board, as suggested by its sponsor, exists in law today and for the past 4 years.  Yet in the 4 years since this statute came into existence I have not heard of one HOA going before the planning board or town council seeking the right to regulate public streets. Have you?  There is apparently more behind this bill than meets the eye.

In my Commentary, “Another AZ HOA bill constitutionality challenge looms: SB 1240, I broadly outline the legal doctrine regarding an unconstitutional delegation of legislative powers.  I also strongly raised the issue that SB 1240 is, as written, a facially unconstitutional grant of authority for a “government entity” to delegate legislative authority to private HOAs to regulate public streets.  SB 1240 leaves many unanswered questions.

Here are a few examples of why SB 1240 is facially unconstitutional,

A.  Specificity:

  1. What “government entity’ is the bill talking about? Presumably a planning board, or as Kavanagh said, “town council,” but why not say so? What other entity could there be that has been dedicated or holds ownership by a “governmental entity”? We don’t know!  Especially when there are bills before the legislature dealing with special district government entities: SB 1402 and SB 1416.
  2. What authority is being “formally granted” to the HOA by the entity? Not specified. Yet, any such decision by the governing entity affects the homeowners’ constitutional contractual rights against interference. The homeowner is told that the subdivision streets are public streets and he has a reasonable expectation of public regulation. If the state to takes away that expectation of public regulation it would be interfering with the HOA contract, the CC&Rs.  It has no power to do so!
  3. While government agencies are granted certain powers and authority, the bill does not specify these valid grants of powers given to a particular government entity. (My Commentary given above uses the Arizona court challenges to OAH adjudication of HOA disputes, holding the need for specificity for such a valid delegation).
  4. The general powers of a town/city council are stated in ARS 9-240(B) 3. (a) “To exercise exclusive control over the streets, alleys, avenues and sidewalks of the town and to give and change the names thereof” (emphasis added). It cannot delegate – “formally grant” — these powers to a private HOA entity.
  5. ARS 9-463.01, municipal authority, makes it clear throughout that the “legislative body” of the municipality governs and regulates. But, it too, must abide by the state constitution.

B.   Sample authority to enact ordinances and regulations

  1. (Taken from a city in Texas.). “The board of commissioners of said city shall be vested with the power and charged with the duty of making all laws or ordinances not inconsistent with the Constitution of the State of Texas, touching every subject and matter within the local government, same to include the power to impose fines and penalties for the violation of the same. They shall have the power and authority in the government, management and control of xxxx, which are not especially delegated to some other authority and they may pass any ordinances they may desire delegating any part of their authority and duties to any other person, officer or employee, not inconsistent with the Constitution or laws of the State of Texas.” (emphasis added).
  2. “In the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the State. A municipality is merely a department of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit.” (Trenton vs. New Jersey, 262 U.S. 182 (1923)). (Emphasis added).

C.  Lack of homeowner/member protections

  1. Like many pro-HOA bills that grant HOAs governmental powers, this bill lacks a consideration for the homeowners. What protections do homeowners have against rogue boards and arbitrary and capricious regulations? The bill provides none!  Like being fined for a stranger parking in front of his home?  Since the HOA isn’t able to penalize non-members from parking violations without being the enforcement agency for the state –calling on the police to enforce parking — the innocent homeowner is penalized for not enforcing the HOA regulation against non-members.  C’mon!
  2. The CC&RS and bylaws would require amendments to provide bona fide due process hearings in place of the current HOA kangaroo courts in order for justice to prevail. You know, witnesses to challenge and question and a requirement to show evidence rather than someone’s unverified statement.  Let’s be fair!

D.  Judicial scrutiny

  1. This topic deals with the intent and purpose of the bill. There is no statement of legislative intent for SB 1240.  So, why after 4 years is the legislature addressing this issue?  What is the legislature’s government interest sufficient to pass judicial scrutiny?  If a law affects a group in a damaging and negative manner, strict scrutiny must apply and the proponents must specify a valid compelling and necessary justification for the law (see my Commentary mentioned above).  None is offered!  It cannot be a simple, it’s more convenient to do it this way.
  2.  The bill contains too broad a wording to satisfy judicial scrutiny and unconstitutional.

 

With all due respect to Senator Kavanagh, this is a poorly thought out and worded bill, and should be withdrawn ASAP.  The Rules Committee must not accept this bill as constitutional.

PS.  As many of you may not know, I am not a lawyer.

 

 

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Published in: on February 4, 2017 at 2:28 pm  Comments (6)  

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6 CommentsLeave a comment

  1. No need to be so kind to Kavenaugh. He doesn’t get it and is an embarrsement to his constituents. The less powers given to HOA the better. Too many are managed by inept board members. I just came from Scottsdale Neighborhood college. It is scary some of the questions these board members propose to the instructors. Keep up the great work, George.

  2. […] more information, see Rebuttal to sponsor’s interpretation of AZ SB 1240 and Another AZ HOA bill constitutionality challenge looms: […]

  3. Hello! I wanted to share an email I received from the WA state Attorney Generals off back in July of 2016, when I was (and still am) fighting for HOA/COA Constitutional Rights. I am gaining attention with this email, but I want to thank you for educating me to fight this battle.

    Dear Ms. Schifano, Thank you for following up regarding our office’s response to your preious email. As my colleague Marta DeLeon explained in her email sent on June 30th, COAs and HOAs are not governmental organizations, but rather are private organizations. As with corporations or charities, COAs and HOAs operating in Washington are required to register with the Office of the Secretary of State (OSOS). However, neither the Office of the Secretary of State nor the Office of the Attorney General have regulatory authority over a COA or HOA aside from ensuring proper registration with the OSOS. Because COAs and HOAs are not governmental entities, if a COA or HOA is violating a member homeowner’s rights or otherwise violating the terms of the covenant governing the COA/HOA, the legal remedy is for the homeowner to bring a private lawsuit. Such a suit cannot be brought under the federal Civil Rights Act §1983 because those lawsuits can only be brought against a state actor, not against a private organization. You may want to consider discussing this matter with a private attorney who can provide you with legal advice about the best way to address your complaints with your COA. If you do not know an attorney who practices in this area of law, the Washington State Bar Association has an online lawyer directory at http://www.wsba.org. The King County Bar Association also has a lawyer directory: http://www.kcba.org/lrs/. Additionally, King County Bar Association operates free legal advice clinics throughout King County. The clinics are free and open to any resident of King County. There is a regularly-scheduled clinic in Kent, and you may be able to get additional guidance from a volunteer attorney through the clinic. More information is available at their web site: http://www.kcba.org/pbs/NLC.aspx. Sincerely, Scott A. Douglas Assistant Attorney General Government Compliance and Enforcement Division Washington Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 (360) 586-2940

    Sent from my iPhone

    >

  4. If power is delegated to HOAs, and their management/towing/private security companies, Arizona will see an increased frequency of abusive parking tickets, speeding violations, vehicle booting and towing..

  5. Thanks for getting it right, again…

    “PS. As many of you may not know, I am not a lawyer,” as such, you can be proud of what you do!

    • Thank you.


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