I’m writing concerning the guest commentary by Nick Dranias published Feb 13, 2009, in the Arizona Capitol Times (“HOAs Should be Bound by Bill of Rights”).
The major complaint of most owners/members of HOAs is that they feel they have lost their rights to the peaceful enjoyment of their property. The residents of Arizona believe in the federal Constitution, and they also believe in the state Constitution, which also promises protection of life, liberty and property, as well as due process of law.
However, it is a fact that owners of residences, be it a condominium or a single-family residence, have great fear of a dictatorial oligarchy that can take their property at will without due process.
There is no authority in Arizona or anywhere else in the United States under which some government — city, county, state or federal — can delegate to a private developer the power to deny any part of the U.S. Constitution or the Constitution of Arizona.
It is my position that planned-area developments that have evolved into mini-communities need more than the rules (CC&Rs) promulgated at the time of purchase. They may need a constitution. The incoming resident may have to apply, study and pass a test to enter the community.
It is a fact that planned-area developments generate sales-tax revenue for the city, county and state, and because of that, the HOAs are favored under the color of feigned capitalism in the lower courts. Is that not creating a “privileged class,” and is that not inconsistent with the Constitution of Arizona? Of course it is.
Free enterprise in Arizona is a cherished right. The short definition is that free enterprise is based upon American capitalism, which states that government should not interfere with the activities of people dealing with each other.
Ah, but that is not a complete definition of capitalism. To complete it, we must add that capitalism is a system where people deal with each other voluntarily, with full disclosure by both parties, without fear or duress, to their agreed upon profit and mutual benefit; not as victim and thug, or master and servant, not by threat of physical force, or threat of loss of life or property, but as equals in an exchange.
It is doubtful whether CC&Rs could be ruled constitutional. There can be no community within the United States where the Bill of Rights is not operative. This argument can be narrowed to say “no residential community” can exist if it denies its residents their constitutional rights — a broad argument to be sure. HOAs rely on their members to not have the money, time or passion to carry the fight to the Supreme Court.
Ted King,
Scottsdale (candidate for state Senate District 8)