A common joke of the 1950s related to communist Russia’s 5-Year economic plans. It was a top-down plan that always failed. The joke went:
In Russia You can buy any shoes you want as long as they are black. Why is that? Because they only make black shoes.
Jump to 2012 America.
In America you can buy any new home you want so long as it’s in an HOA. Why is that? Because they only build new homes with an HOA.
A. Does the use of the word “shall” establish the HOA as a state actor?
1. Monroe Township
I begin by an examination of the hard-core Monroe Township, NJ HOA ordinance[i] which states, in part, my emphasis,
“A homeowners’ association shall be established for a multifamily development or a development consisting of 100 dwellings or more. . . . The homeowners’ association shall be established for the purpose of owning and assuming maintenance responsibilities for the common open space and common property designed for or located within a development.”[ii]
Please understand that many states define an HOA as having common areas and amenities. Note the territorial implication of the HOA government, “located within”.) But, the ordinance doesn’t stop there. It includes, “The organization shall incorporate the following provisions: (1) Membership by all property owners in the project shall be mandatory.” [iii]
Now, the ordinance is very craftily worded to pertain to owning property and “assuming maintenance responsibilities,” and not touching on any aspect or implication of governing. Except, of course, the town must explain just what “assuming responsibilities” means if not managing or governing. It could simply mean a hired hand, a contractor, if the word “responsibilities” were omitted.
The intent of the ordnance is clearly stated in subsection (E)(4), which says in part, “The organization shall clearly describe in its bylaws all the rights and obligations of each tenant and owner, including a copy of the covenant . . . and the fact that every tenant and property owner shall have the right to use all common properties. . . . These shall be set forth as a condition of approval and shall be submitted prior to the granting of final approval
Doesn’t this wording indicate an awareness that the HOA is concerned with more that performing maintenance functions? Why would a planning board be concerned with the terms of a private contractual agreement beyond its sole authority in regard to property ownership and maintenance? There are laws governing property rights and tenancy that surely would not be duplicated in the Declaration.
No, the planning board is fully aware, or else it’s intentionally negligent, of the legal status of HOA through state statutes and commonly used boilerplate declarations. In other words, the planning board cannot escape its responsibility for requiring HOA governance by saying we don’t look at or approve of the governing documents. Regardless of board’s awareness, the mandate for submitting the HOA governing documents and the required approval by the planning board establishes the HOA as a state actor subject to the 14thAmendment.
2. Arizona mandates
Gilbert, AZ has a mandated HOA requirement that says, emphasis added,
A homeowners or property owners association shall be created to maintain and operate landscaping, open space, recreation facilities, private streets, utilities, and/or other facilities held in common ownership. The documents creating the association shall provide that this obligation continue in perpetuity. Evidence of compliance with this Article shall be submitted with an application for a final subdivision plat or minor subdivision.[iv]
This requirement is not as detailed as that of Monroe Township, but still centers on subdivisions with common areas and property, which defines an HOA in Arizona. Again, as long as the governing documents cover maintenance, the planning boards ignore the other covenants that affect the homeowner’s equal application of the laws and due process rights. But the fact remains, as with Monroe Township, ignorance of the declaration does not absolve the planning board of its responsibility for establishing HOAs as state actors.
The Chandler, AZ ordinance[v] states,
40-1. – Policy.
It has become common for developers to satisfy certain of the conditions of approval for subdivisions by use of commonly owned property maintained by a Homeowners’ Association (HOA) composed of the property owners within that subdivision. These [subdivision] facilities and amenities become conditions to and a part of the approved subdivision with which the developer must comply. Without these facilities and amenities, the subdivision would not have been approved by the City and the development would not have proceeded.
It is hereby adopted as a policy of the City of Chandler, Arizona, that when Homeowners’ Associations are given such responsibilities pursuant to the zoning and subdivision approvals which allowed such properties to develop . . . .
It is a more wishy-washy statement, but the bottom line is that the developer will indeed form an HOA if he wishes to be approved, and not want to oversee the subdivision in perpetuity as required by the ordinance. Here, the planning board says, No, not me! Him, the developer! His choice in establishing private governments. This is about the same choice given to a homeowner if he wants to live in a new home, isn’t it? And again, the planning board adopts a Not my job when it comes to approving the HOA governing documents.
B. Are the planning boards exceeding their authority by mandating HOA private governments for sub-divisions?
Part A, above, leads to the serious concern of low level divisions of a town or city demanding and establishing private governments without any oversight or accounting. While delegating such legislative functions to a private entity is unconstitutional, the planning board itself has not been delegated authority to create such private governments over subdivisions within the state. It has exceeded its authority!
For more information, see HOA Case History: state actors or mini/quasi government;
[ii] Id., subsection (A).
[iii] Id., subsection (E).
[iv]Gilbert, AZ Zoning Regulations, Article 4.9: Common Area Ownership and Maintenance, Section 4.903.