PRESS RELEASE *** PRESS RELEASE
For immediate release
January 25, 2004
CONTACT:
George K. Staropoli,
Citizens Against Private Government HOAs, Inc
Scottsdale, AZ
602-228-2891
info@pvtgov.org
The unconstitutional mandates of HOAs must stop!
The Town of Gilbert, AZ is seeking comments on its planning board policy
as setforth in its Public Review Draft of Article 3.1 of its Unified Land
Development Code. The issue of mandating HOA governance for all new subdivisions
must be addressed. Several Arizona bills -- HB2453, HB2368, HB2380, HB2402,
HB248 -- as well as important court decisions affect this issue.
The question of towns/cities mandating the use of HOAs to govern planned
communities is a gross unconstitutional delegation of governmental authority.
These planning boards give away the state's homestead protection just because
they want to be free of governing the community, thereby removing homeowners
living in these HOAs from the equal protection of the laws: the homestead
laws of the state (1) and other laws.
These planning boards are taking away a citizens rights in violation
of state laws without the requisite supervision and oversight required by
law (2). To argue that by signing a purchase contract the buyer has knowingly
agreed to surrender these rights, without reading, signing or initialing
the CC&Rs or bylaws, is disgraceful (3). A used car firm would be held
accountable for making such an argument and hiding material facts from the
home buyer.
These planning boards do not make any specification for the equal protection
of the laws and due process to unsuspecting home buyers. These acts are a
definitive instance of state actions and violate the constitution (4).
Homeowners living in planned communities subject to HOAs must have their
rights restored. The passage of the current bills mentioned above an are
important step in restoring these rights taken away in favor of private organizations.
References:
1. ARS 33-1101 to 1105
2. Mcloughin v Pima County 2 CA-CV 2001-0198, Arizona Appeals Court
"It is a well established theory that a legislature may not delegate its
authority to private persons over whom the legislature has no supervision
or control"
"The legislature cannot abdicate its functions or subject citizens and
their interests to any but lawful public agencies, and a delegation of any
sovereign power of the government to private citizens cannot be sustained
nor their assumption of it justified".
3. ARS 33-1807, 33-1256; Pardee Construction v Rodriquez California Superior Ct GIC769966, D039273
From Pardee:
"And the agreements in their entirety [relating to
compelled construction defect arbitration] were contrary to the public policy
... Subsequent cases have referred to both the 'reasonable expectations'
and the 'oppressive' limitations as being aspects of unconscionability".
4. Brentwood Academy v Tennessee School Athletic District, 99-901 USSC; Lugar v Edmundson Oil Co, 457 US 922 (1982)
From Brentwood:
"We have, for example, held that a challenged
activity may be state action when it results from the State's exercise of
'coercive power', when the State provides 'significant encouragement, either
overt or covert', or when a private sector operates as a willful participant
in joint activity with the State or its agents".
"We have treated a nominally private entity as a state actor when ... the organization performed a public function; was created, coerced or encouraged by the government".
Additional information:
The Case Against State Protection of Homeowner Associations, George K. Staropoli, Infinity Press, ISBN# 0-7414-1620-4, 2003
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The HOA Citizen
The Case Against State Protection of Homeowner Associations
Citizens Against Private Government HOAs
George K. Staropoli
PvtGov.Org