[Towertalk] ABC Home Owners Assoc Expose

[Joe Subich, K4IK]

> -----Original Message-----
> From: Paul Christensen [mailto:w9ac@arrl.net]
> Sent: Saturday, April 20, 2002 2:06 PM
> To: Joe Subich, K4IK; towertalk@contesting.com
> Subject: Re: [Towertalk] ABC Home Owners Assoc Expose
> 
> 
> 
> However, when a HOA wields power traditionally held by local 
> government, then their cute and tidy practices turn into 
> something much bigger.  A rose by any other name....is 
> still government.  In Florida, this occurred several years 
> ago in the Foote Towers case.  The court ruled that the local 
> HOA had indeed metamorphosed into local government and that 
> the HOA's power had become excessive without affording 
> procedural and substantive due process rights to the 
> homeowners.  The moral of the story?  Don't let the HOA
> become too big and powerful.
> 

Paul, 

That's exactly the point ... when the HOA steps into areas that are 
traditionally the province of government (e.g.. freedom of speech, 
due process, regulation of interstate commerce, land use, zoning, 
etc.) they become, de facto, governments and (should) be subject 
to all the (constitutional and procedural) limitations that apply 
to a government. 

The courts ruled, and rightly so, than Caucasians only CC&Rs were 
unconstitutional.  What is the difference between a CC&R that the 
HOA could argue is consistent with freedom of association (certainly 
the government does not have the right to tell me with whom I must 
associate <G>) or protects due process (certainly the government 
does not have the right to tell me to whom I must sell my property 
<G>) and a CC&R that would restrict my free speech rights or ability 
to engage in interstate/international commerce for which the federal 
government has granted me a license?  

> All the great protections you just mentioned and are constructed 
> and framed within our Constitution are limits of GOVERNMENTAL 
> power, not private power, such as that vested in homeowners 
> associations (HOA).  This is a critically important point in 
> U.S. Constitutional law: A private person or entity CANNOT 
> commit an unconstitutional act except when acting on behalf of 
> the government.

Since homeowner associations and CC&Rs are recognized by statute 
does that not imply, at least in part, the vesting of governmental 
power in the HOA?  For example, our board of directors has the 
authority to post (and enforce) speed limits on the community 
streets ... we have the authority to permit or ban the use of 
motorized vehicles (e.g., golf carts) on the community streets 
that are not permitted on public highways.  

73, 

   ... Joe, K4IK