“Private Metropolis” revisited

It is my strong belief that  the HOA legal model of local government played a part  in the demise of democracy in America[i] has been greatly assisted by the recent publication Private Metropolis.[ii]  In my prior post on Private Metropolis,[iii] I was very pleased by the opening Introductory paragraph,

The opening introductory segment encompasses a wide description of special  governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 27% of the population — according to CAI — as residents), that “became, in effect, shadow governments.” 

Unfortunately, these highly descriptive political concepts  used in this very broad study of local government failed to appropriately address the form of local government known as HOAs.  Scant attention is given to these associations by the authors. In the 312 pages “homeowner association” is mentioned just once and “CID” twice. But “shadow government” and “quasi-government” and “special districts” are tossed around quite frequently. Readers, having read the very enticing title, will be greatly disappointed by its failure to deal with the most direct affront to the eclipse of local democratic government: the HOA legal model of governance that has been supported by all state legislatures across this country.

HOAs, my generic term for community and homeowners associations, satisfy the fundamental definition of a political government.  Black’s Law Dictionary (7th Ed.) definition separates the men from the boys: “Modern states are territorial; their governments exercise control over persons and things within their frontiers.”  And that is the unique feature of political government that  distinguishes an HOA from  a business, a non-profit charity, a club, a union, etc. I believe that the decision to form HOA governance outside the domain of public government was intentional to avoid constitutional restrictions.[iv]

They are a de facto yet unrecognized form of local government — other forms being mayor-council, council-manager — born and created as private entities, and as such,  have escaped, for the most part, under the common defense prohibiting  any ”law impairing the obligation of contracts.” Although the other forms of public local government are subject and held to the Constitution and the laws of the land. HOAs meet every criteria set forth by the authors as indicated above and epitomize the eclipse of local democratic government. 

The authors appear to admit the failure of the  ivory tower “philosopher kings” (my terms) to actively participate in preventing the fall of local democracy: “Instead, even scholars who study local governments [only recently realized] the degree to which quasi-public institutions are insulated from the democratic process.”  That applies strongly to authoritarian HOA governments. 

Notes


[i] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).

[ii] Private Metropolis: the Eclipse of Local Democratic Government,  Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).

[iii]  Private Metropolis: explaining the demise of local public government.

[iv] CC&Rs are a devise for de facto HOA governments to escape constitutional government.

Private Metropolis: explaining the demise of local public government

My repeated efforts to instill, to inculcate, a necessary broad  understanding  of democratic principles and government — and the part played by the HOA legal model of local government — in the demise of democracy in America[1] has been greatly assisted by the recent publication Private Metropolis.[2] (It was published at the same time as my amicus curiae filing with Arizona Supreme Court in Tarter[3]).

The opening introductory segment encompasses a wide description of special  governmental units. It is loaded with constitutional issues and controversies that says it all quite plainly: “quasi-governments,” “shadow local states,” “the municipality is no longer the privileged seat of governance,” and “special purpose local governments” (including homeowner associations with some 24% of the population as residents), that “became, in effect, shadow governments.” 

My 21 year long-term effort in the trenches  has been to introduce the broad level constitutional issues and democratic philosophy to the average American, who does not know and cannot understand the words of these learned political scientists. I have, for the most part, failed. Private Metropolis gives me additional support and the basis for continued efforts to educate the public at large who suffer the consequences of a  “not my job” attitude.

It is up to the homeowner advocates and HOA boards to embrace this reality and expose the arguments of supportive political scientists to the policy makers in your state, as well as educating the media  on its  continued silence on these issues.

Endnote


[1] See in general, Whither goest local government? Restrictive HOAs or responsible public government (2009); CAI’s early awareness of HOA constitutionality, public mini-government (2021); HOAs are another form of local government (2021).

[2]  Private Metropolis: the Eclipse of Local Democratic Government,  Dennis R. Judd, Evan McKenzie, Alba Alexander, Global and Community Series, Vol. 32, Univ. of Minneapolis Press (June 22, 2021).

[3] Pro Se Bendt amicus brief accepted by AZ Supreme Court.

HOAs as ‘windmills’

This is my statement on the rejection of my efforts to restore constitutional protections to HOAs by a society suffering from a decay and decline in ethical, moral, and democratic values.

The reality of the HOA “windmills”

This metallic wall sculpture has been hanging on my wall for some 43 years. Bought at an arts and crafts show in a small town in Westchester County, NY.  I thought about selling it some 7 years ago but decided to hold on to it for some reason or other. Recently, I’ve come to the conclusion that acquiring it was a sign of my destiny, which turned out to be my 20 years of activism for substantive constitutional HOA reform legislation.

Most people will recognize the sculpture as the delusional knight Don Quixote doing battle against ferocious giants –windmills. 

However, Miquel de Cervantes’ Don Quixote de La Mancha (published in 2 volumes in 1605 and 1615)  has  deeper meanings relating to persons of high morals and ideals in a society that has  lost the values of chivalry and honor – of doing the right thing and coming to the aid of others. 

Cervantes portrays Quixote as being out of touch with the reality of his times.  As for my efforts, the windmills are real. They are HOAs. There are numerous reviews of Don Quixote revealing Cervantes’ deeper meanings as quoted in several examples below:

“He had the moral courage in him to go beyond the ordinary in spite of those around him thinking of him as an outlier. He could imagine what others couldn’t — the first step to greatness and leadership.

“After Quixote had imagined what was possible, he had it in him to commit to it and believe in the purity of his goals.

“The novel’s message that individuals can be right while society is wrong was considered radical for its day.”

I have written about the culture within HOA-Land; I have written about the decline and decay in society’s moral, ethical, and democratic values. (See Constitutional Local Government and HOA Constitutional Government). For the most part, my analyses and warnings have been ignored by elected officials and politicians at all levels, by the public at large, and by a large majority of homeowners living in HOAs. So, it appears that like Don Quixote,  I am out-of-step with the reality of these times.

But it doesn’t make me wrong!  Historians will judge.

CAI claims Factbook 2018 at home with Democracy in America.

I am quite impressed with CAI after looking over its latest Factbook of 2018.[1]  It is a voluminous document of some  297 pages in total that includes numerous copies of government generated reports and studies, as well as from secondary real estate attorney articles and papers.[2]  It is a lofty presentation designed, I believe, to give the distinct impression that CAI is indeed the all-knowing expert regarding HOAs: that CAI has all the answers!  It reminds me of a product of the Ministry for Public Enlightenment and Propaganda.[3]

In more concrete terms, CAI appears to be reacting to outspoken advocate criticisms by reaffirming and doubling-down on its support for HOA-Land. The Factbook contained some surprises of a material nature that I took note of and that I  will briefly address here.  Each of the following five CAI positions in the Factbook is an affirmation that HOA-Land represents a better community and society than found under the US Constitution; which is not recognized in the Factbook or given just lip service elsewhere!

Furthermore, I found the audacity of CAI to equate HOA contractual, private,  de facto governments with the 1832 America presented in Democracy in America to be very disturbing (see Finally below). It reflects a severe detachment from reality in a document purported to be factually based.

First, In Part 2,[4] CAI makes an effort to explain the 4 goals of the Factbook that starts with a lecture on “evidence-based management.”  It distinguishes anecdotal evidence as contrasted with science-based evidence in deciding the course of action, or “intervention” as stated in the document. It’s a dissertation on what makes a solid basis for analysis and conclusions.

However, it’s a slap at those people who just “tell stories” without proper vetting.  Of course, it is silent on and not related to the manner in which the Factbook  got its facts, and gives the impression: “not us but those guys, you know who.”  I took it as an attempt to defend their studies as unquestionably valid. Advocates can indeed make CAI twitch!

Second, Part 2[5] contains a surprising link to the Stabile book of 2000[6] that is a self-congratulatory  book, in my view, funded by CAI and ULI.  What are they thinking?  Here’s a quote from Stabile.[7]

[HOAs are] a consumer product sold by profit-seeking firm, a legal device, a corporation reliant on both coercive powers and voluntary cooperation, a democracy, and a lifestyle.

With this plan, TB50 [The Holmes Association Handbook] set out the plan that would be taken in forming the CAI.

It has a documentary style, but not a very flattering one to CAI as shown above,  if you reject its premise that HOAs are not a political government. A detailed analysis of the Stabile book can be found in my History paper.  Scroll down to “2000.”

Third, another lecture now on how HOAs function is addressed via a link to a CAI published 26-page book on sale for $15.00.[8]  A short, one-page excerpt is provided that reads right out of the CAI School of HOA Governance.[9]  Nothing new here. No mention of violations of the US constitution, bill of rights, due process or equitable servitudes, etc.  But then again, I forgot. Who am I?  I’m not even a lawyer. I’m David battling Goliath.  CAI has all the answers.

Fourth, another shocker for me.  A link is provided to the Susan Fletcher French article, Making Common Interest Communities Work: The Next Step.[10]   But what are they doing???  As stated above, the reference is not flattering to CAI since it is an obviously biased statement coming from a legal authority produced to guide judges in common law. And it’s a 2005 article and we would like to know what has happened over the past 14 years!  Here’s part of her conclusion:

I conclude that states should provide administrative support for community association governance with education, dispute resolution, and enforcement services. Common interest communities have become too important to leave to their own resources and the judicial system. There is much that states can do and there are several models of successful programs. They should take the next step.

I hope you all recall that French was the lead editor (Reporter) in the 2000 rewrite of the Restatement 3rd Equitable Servitudes.[11]  She is referenced in the Foreword:

Professor Susan French [Reporter (chief editor/contributor) for this Restatement] begins with the assumption . . . that we are willing to pay for private government because we believe it is more efficient than [public] government  . . . . Therefore this Restatement is enabling toward private government, so long as there is full disclosure.

Finally, to all my disbelief, CAI references  Alexis de Tocqueville’s 1835 Democracy in America, and equates  HOAs as a continuation of America’s striving

“For continuous improvement at all levels of society and government.” Alexis de Tocqueville reflected on the constant activity that characterized America in the 1830s for continuous improvement at all levels of society and government. Little has changed since that time. He would be right at home at a community association board meeting, at a CAI Chapter program or at a national CAI Conference or Law Seminar.”[12]

The implication is that HOAs are also striving for the same  improvements as de Tocqueville discusses in 1830s America.  Not so! Understand that Democracy is a 2-volume set of some 800 “fine print” pages encompassing a multitude of aspects and conditions about America in the early 1830s. It is replete with discussions of the Constitution, of the American values and principles of liberty and freedom, and of the workings of our democracy. Not a word about contractual private government!  It is unconscionable for CAI to make such an unfounded comparison that implies private HOAs are a natural development for the making of a better America.

CAI is silent and does not address Professor McKenzie’s comments in his seminal 1994 book, Privatopia,[13]

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.

The balance of power between the individual and the private government is reversed in HOAs. . . . The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

 

In summary, CAI comes across as dogmatic – not recognizing or accepting any statements contrary to its beliefs — and suffering a cult-like blindness to reality. The Factbook is an act of desperation and an inability to defend its position in an open debate as I had proposed back in 2006.

In a brief phone call during which he’s quiet and almost courtly, he explains that Common Ground is CAI’s “house organ,” and that he’d be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context.[14]

 

References

[1] Community Association Fact Book, 2018, Parts 1 – 8 (July 4, 2019).

[2] Parts 4 -6 and 8 are indexes to details on each of the states and are not included in the total pages. There are also several links to other reports, articles, studies, etc. also not included in the total page count above.

[3] See in general The Avalon Project, Yale Law School.

[4] FB Narrative, page 7.

[5] Id.

[6] Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, Amazon.com. A 256-page book priced at $95.00.

[7] See my Commentary, “A historical look at the purpose and intent of the HOA promoters,” HOA Constitutional Government (January 27, 2008).

[8] Supra n. 3, page 8.

[9] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[10] Susan Fletcher French, Urban Lawyer, Vol. 37, Summer 2005.

[11] the Restatement (Third) of Property: Servitudes, Susan F. French, Reporter, the American Law Institute  (2000).

[12] Supra n. 1, Part 2, section 4.

[13] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[14]The Lone Ranger has never stopped fighting for HOA truth and justice,” quoting CAI Common Ground Editor Christopher Durso, (Common Ground, May/June 2006).