Why are there private HOA governments when there are home rule, charter governments?
Getting down to the issues of state laws relating to local governments, let’s examine the doctrine of home rule. Under the home rule doctrine local communities are permitted a large degree of independence even to the extent that state legislative action is not necessary. What is home rule? In simple terms, it is a grant of authority and power — of independence — from the legislature to local communities. (See HOAs violate local home rule doctrine and are outlaw governments; AZ Supreme Court, Tucson v. Arizona, CV-11-0150-PR (2011).)
All the states have a version of home rule that varies in the degree of independence granted to a local governments and under what terms. Check your state laws under home rule or charter government. Strict states treat the home rule powers strictly as set forth in the statutes, like agency enabling acts. Most states have allowed for wider freedoms to local home rule governments, with some allowing for local government charters functioning as a local constitutions. In all cases it’s a grant of independent governance from the legislature on local matters.
As an example, Arizona’s Constitution allows for home rule charter governments.
“The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible. . . . ‘[A] home rule city deriving its powers from the Constitution is independent of the state Legislature as to all subjects of strictly local municipal Concern.’”
Given this existing legal mechanism for strong, independent local control, why was there a need for the creation and approval of, and the support for, private government HOAs? Could it be as Prof. McKenzie stated in his 1994 book, Privatopia? “CIDs [HOAs/POAs/RCAs] currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent to local governments.”
It’s obvious that it was not to create healthy, productive communities. Was it a business venture from the start to make profits for the originators masquerading as a public serve and benefit?? Was it for the real estate agents and the home builders, and to cut state government costs?
HOA associations are political bodies
The effective management of a political community, as are HOAs, and remain part of the greater political communities of their state and federal government, necessitates a rejection of the HOA legal scheme and its protectives laws. There are no legitimate reasons why HOA governed communities cannot exercise effective and productive self-government while being subject to constitutional law under home rule statutes.
Home rule doctrine existed long before the advent of the HOA legal structure in 1964. That is not to say that it would have solved all problems and be a perfect government, but it would be a government under the Constitution, part of the Union, like all other forms of local government.
If the initial 1964 HOA concept had included home rule provisions, then there would be no need for a restructuring.