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Something Stinks In This Washington State HOA!

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guest blog by Deborah Goonan

Ruth Crompton and her neighbors recently discovered that 7,000 gallons of raw sewage has been discharged into their storm sewer vault over the past 9 years. It seems that someone, presumably the defunct developer, mistakenly connected Crompton’s black sanitary sewer pipe to the white storm sewer drain. Big “Oops!” The error was recently discovered by the County’s Surface Water Management Division.

Crompton and her neighbors want to know why the County inspector signed off on the plumbing project at the time of construction. Not willing to accept responsibility, the County claims that perhaps a bad repair was made sometime after the County inspector approved the work.

Snohomish County officials insist that Crompton and five neighboring homes belong to an inactive HOA, and that homeowners are now responsible to pay for the cleanup, at a total cost of $15,500. If owners do not comply, they could face additional fines up to $5,000 each. The crazy part is, Crompton and her neighbors never knew about the small HOA. It was never discussed prior to sale, and, without a Board, they have never paid any assessment fees. County records indicate that the community was created as Starlight Park Condominiums. The six homes share a driveway, and, even though the now-bankrupt developer never funded the HOA, owners are just discovering they must share the cost of maintaining their common drainage system.

Ms. Crompton plans to fight against paying for what she believes is the County’s error and responsibility.

Never mind the apparent inspection blunder at the time of construction. Since this HOA never got off the ground, shouldn’t the County step in? And why did it take the County 9 years to discover the problem? Obviously, the County and water management authorities approved construction permits for the developer, who turned out to be somewhat of a dud. Why should the owners – who are truly victims of circumstance – pay for the errors and incompetence of the parties who were responsible for construction from initial permitting to issuance of a certificate of occupancy?

The Ombudsman’s explanation: well, if these owners don’t pay for the cleanup, the County will face sizable Federal stormwater fines, and the taxpayers will have to foot the bill. Sounds like someone is passing the buck – literally.

I predict that County taxpayers WILL pay for the inevitable lawsuit brought by Crompton, and they may also be unable to avoid the federal fines. Wouldn’t it be less expensive, easier, and fair for the County to simply take care of the problem it helped to create?

(link to Herald Net article about sewer system cleanup)

HOAs As “Mini-Governments”

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guest blog by Deborah Goonan

A recent article published at Virginia’s TimesDispatch.com, has summarized the proliferation of HOAs as follows:

“(Homeowners’) associations are nearly ubiquitous for new residential housing in the Richmond area, embraced by developers as a way to handle long-term care of common amenities and by local officials as “mini-governments” that can help maintain order and property value.”

The article’s author, Ted Strong, interviewed several county officials on the subject. For readers who may doubt claims of some home buyers that it is nearly impossible to find HOA-free housing in many parts of America, just feast your eyes on the following blatant admissions by Richmond, VA, area officials representing Henrico County:

Kirk Turner, Chesterfield County’s director of planning, said his county wants the associations in the vast majority of cases. “From our standpoint, we actually encourage the creation of an HOA….”

At this point, “probably 100 percent” of new subdivisions in Chesterfield County of at least 20 lots have associations, Turner said.

“To me, the HOA is like a mini-government,” said Henrico County Attorney Joseph P. Rapisarda Jr.

There you have it. The ubiquitous nature of HOA-Land is driven by supply-side expediency and economics. The Developer gets to increase housing density, and therefore, profits. Local planning boards encourage HOAs, because such organizations are viewed as extensions of local government.

Developers love to preserve their “visions” – i.e. perpetual control – of communities they have created. Local governments love the fact that they can just sit back and collect property tax revenue, and leave strict code enforcement to HOAs.

Says Attorney G. Elmore, of the Community Associations Institute (CAI)-member Community Association law firm:

“Associations often help to preserve developers’ visions for common features or aesthetics.”  Elmore is an attorney at Chadwick, Washington, Moriarty, Elmore & Bunn P.C., which represents community associations extensively.

“Well-kept common features help property values and a neighborhood’s livability,” he said. “And associations are necessary if a neighborhood hopes to maintain aesthetic standards stricter than those in county laws.”

Ah, CAI’s vision now becomes crystal clear: without HOAs, aesthetic standards would suffer and property values would plummet. Or would they?

Do we really buy Elmore’s premise?

I think it is true that HOAs can, and often do, enforce stricter aesthetic standards than counties. But, is that a good thing for residents? Not necessarily, when strict standards result in costly lawsuits over flagpoles or home-based businesses.

And taking it one step further, Elmore fails to mention that HOAs can, and often do, enforce standards that limit Constitutional rights of free speech and expression. He also forgot to mention that HOAs tend to fall short when it comes to upholding important government duties such as conducting fair elections and handling disputes over violations with sufficient due process.

Isn’t that the least residents should expect from “mini-governments?”

But wait a minute – back in 2007, CAI issued the following press release in regard to the Supreme Court decision in Committee for a Better Twin Rivers v. Twin Rivers Community Association. Back then, the court decided that HOAs are not governments, and CAI happily echoed the sentiment. Here’s a quick refresher:

• The Twin Rivers decision held that residents of an association not only have the right to express themselves; they also have the freedom to adopt reasonable policies regulating expression in their communities.

• Community Associations are not governments, but rather, private agreements among neighbors; the New Jersey Supreme Court ruling indicated that the government should be respectful of these private agreements.

• Homeowners’ rights of expression and speech are not changed in New Jersey or elsewhere by the Twin Rivers decision, but rather, the case affirmed residents’ freedom to adopt reasonable policies governing such expression.

• Although courts across the country may find the decision in Twin Rivers persuasive, it does not have the binding authority of precedent outside of New Jersey.

• At its core, the Twin Rivers decision supports the rights of residents within community associations to make reasonable decisions for themselves without being second-guessed by courts or politicians.

Well, CAI better get their local government allies on the same page. Are HOAs “contractual agreements” or “mini-governments?”

The last statement about residents making decisions for themselves is blatantly false on its face in most Associations. The Developer creates rules long before there are residents, even before construction begins. And the HOA Board – often controlled by Developers for many years – makes nearly all decisions on behalf of its residents. In reality, the Twin Rivers decision supports the rights of the HOA Board to make most, if not all, decisions, and not be second-guessed by any branch of US government.

Last but not least, note the veiled admission of classic CAI philosophy – that the HOA Board of Directors (aided and abetted by the Community Manager and/or the HOA Attorney) is absolutely essential to maintaining the “vision” by “taking the lead on enforcement, “ because individual owners cannot be relied upon to exercise good judgment.

“It’s a lot easier to maintain a certain style or look or quality if you have an organization taking the lead on enforcement as opposed to relying on individual owners,” Elmore said.

(link to Times Dispatch article on HOAs as mini-governments)

(link to CAI news release about Twin Rivers decision in 2007)

 

Indiana D.A. Threatens Lawsuit Against HOA Over Flag Dispute

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guest blog by Deborah Goonan

Finally, some common sense prevails in an Indiana flag dispute, thanks to intervention by Hancock County Prosecuting Attorney Michael Griffin.

In an October 23rd letter to the Fieldstone HOA Board of Directors, Griffin strongly urges the Association to resolve its dispute by November 1, or face legal suit to stop enforcement of penalties against the Willits household.

Check out the link to Griffin’s letter below, in which he states, among other things: “In summary, the association does not have a legally‐sufficient “substantial interest” invoked by the Willits’ display. Under the Flag Act, without a “substantial interest,” the association cannot regulate the Willits’ flagpole and American flag.”

And, furthermore, that “Aesthetic preference is not a legally‐sufficient “substantial interest” of the association with respect to American flag display, and I know of no other reason for an association to distinguish between flagpoles attached to the facade of a home and free‐standing flagpoles.”

By October 29, the matter was resolved. The Willits’ flag can stay; pole and all, including the POW-MIA flag. Fox 59 news reports that a compromise deal has been reached. The Willits will have to remove the flag and flagpole in the future when their house is sold.

The dispute dragged on for months. Griffin became involved after the story received national attention in the media.

Although the dispute is officially resolved, and the Willits received hundreds of phone calls of support, some of their neighbors have sent them anonymous hate mail, and Board members have also received threats.

What price, happiness in your HOA?

ps: Perhaps in Florida, Duval County Prosecuting Attorney can follow Griffin’s lead, with regard to Larry Murphree’s flag dispute with Sweetwater by Del Webb Master HOA?

(link to Fox 59 television news report on flag dispute)

(link to letter from Prosecuting Attorney Griffin to Fieldstone HOA Board)

 

Indiana Residents Fighting Eminent Domain for Private Development

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guest blog by Deborah Goonan

I follow Institute for Justice on social media. See the link below for their recent press release about the Pleasant Ridge neighborhood of Charlestown, Indiana. This is yet another case where the city seeks to declare several city blocks “blighted” and to use state grant money to purchase 350+ homes for the paltry sum of $6000 each.

According to a June television report (link below), which includes interviews with Pleasant Ridge residents and Charlestown Mayor Bob Hall, early plans for development are to create a mixed use neighborhood consisting of duplexes, single family homes and affordable housing for seniors. In other words, probably another HOA, this one subsidized by tax dollars.

In June, Hall was quoted as saying that owners would not be “low-balled” on prices offered for their properties. At that time, Hall said owners would only be offered up to $15,000 from grant funds, and developers would have to contribute the rest toward market value. So the proposed offer price has already dropped by $9,000 in just 5 months, with no mention of Developer contribution.

The bottom line is that private developers want the land, so they can build new properties. The Mayor wants to collect higher tax revenues. Instead of dealing with individual properties that are in need of being condemned or demolished, the plan is to raze the entire neighborhood and displace hundreds of residents. Once again, the Supreme Court’s twisted definition of “public use” comes back to haunt American citizens. Fortunately, Indiana’s laws stipulate that eminent domain cannot be used for private development.

I find the following statement from the Mayor’s office particularly interesting,

“This area was declared blighted in 2002 in connection with a revitalization grant received then. The housing in this area was temporary housing bought by the army to house workers at the ammunition plant in 1940,” the mayor’s spokeswoman, Geneva Adams, said.  “They were not meant to be permanent housing. The decline of these structures is evident as you drive through the area.”

Has Ms. Adams taken a close look at the construction quality of many modern homes? I would be willing to bet that the majority of them will not stand the test of time as well as the Army’s temporary housing that is now 74 years old.

(link to Institute for Justice news release)

(WLKY-News video of Pleasant Ridge and Charlestown Mayor, June 2014)

(WDRB coverage from earlier this year)

What Should Federal HOA Regulation Look Like?

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guest blog by Deborah Goonan

We have a huge, systemic problem in the US. It used to be that regulation was enacted and enforced to protect the People, the taxpaying constituents of government. The purpose of regulation was to uphold individual rights and to honor our federal and state Constitutions.

Over the years, that original purpose has been perverted by pervasively symbiotic public-private partnerships between large corporations and every level of government. Unfortunately, many of America’s elected public servants have sold out to special business interests that contribute heavily to campaigns and pay lobbyists to create and promote self-perpetuating legislation.  Even some of our elected judges have shifted their loyalties to corporate and government cronies instead of individual Americans.

The great citizens’ challenge presented to us in the 21st century is restoring America’s values to upholding the inalienable rights of its people. American government’s focus must shift away from protecting profits and revenue of power players, to the detriment of We the People.

In the HOA realm, the current power players are Developers, NAHB, CAI, NAR, FHA, Freddie Mac, Fannie Mae, HUD, ULI, and local governments that benefit from increased property tax revenues. Forgive me if I might have missed a few.

It is a daunting problem. Where to begin?

I have observed that there are a few instances where the HOA almost always loses in court: discrimination based upon federally protected-class status like race and disability are two that come to mind. But most rights to freedom of speech and expression, access to due process, and use of personal property are significantly limited under the cover of so-called contractual agreements written by the power players.

The disturbing truth is that corporate real estate interests have gained excessive control and nearly free reign to exploit HOA owners and residents because laissez faire government policy and practices aid and abet their efforts. But We the People have elected these so-called leaders! (Or have chosen not to vote)

So the first order of business is for individual Americans to reassert our inalienable rights. That starts with becoming educated constituents and voting for public servants based upon their personal character, and not upon false rhetoric supported by wealthy corporations. We need to elect men and women that truly serve the interests of Americans as individuals.

The second order of business is to push for HOA legislation that upholds the Constitutional rights of owners and residents. The overall goal is to limit the power HOAs exert over owners and residents – to get HOA de facto government out of the way! It may sound contradictory, but Federal regulation of HOAs must result in fewer, less complicated laws governing their operation.

Federal Regulation would start by stripping HOA Boards  – private corporate entities – of their authority to enact rules, to fine homeowners, and to lien and foreclose on property. All of these matters would be deferred to local code enforcement and the court system on a very limited basis, with a strict litmus test: does the transgression of the owner or resident rise to the level of causing significant harm to fellow citizens? And significant harm must not be defined as “anything that might potentially harm property values,” because intrinsic human values must trump values of non-living things and possessions.

Because of the perverted nature of regulation in America, where corporations often create legislation to regulate themselves, in my opinion, a global approach is necessary.

Federal legislation, therefore, must be viewed as the next generation of Civil Rights in America.

1)   No entity, public or private, must be permitted to unduly limit or alter the inalienable rights of any American, as they are spelled out in the Constitution and the Bill of Rights.

2)   Any contract that limits the rights of either party must be set forth in plain language, and explicitly acknowledged by all parties – and the terms of the original contract cannot be subject to modification after the fact, without the express written consent of each individual party.

3)   Furthermore, the government shall have the absolute duty to uphold individual Constitutional rights, and to enforce appropriate penalties against individuals or entities, public or private, that violate those rights, including, in the case of elected officials, removal from office.

Those three sentences alone clearly limit the power and authority of corporate or government entities over Americans.

The end result would be the automatic invalidation of the majority of offensive and trivial provisions in CC&Rs, just as previously enacted federal Fair Housing legislation has invalidated overtly discriminatory deed restrictions real estate sales and leasing practices.

No complex, lengthy regulatory manuals required. Less truly is more.