More on Justice Brown...
Fred Pilot takes issue with my speculation about Justice Brown, where I consider how she would view HOAs if a case involving them came before her. I'm reproducing our comments here because some people don't get to the comments and perhaps we can start a discussion:
Fred says: "You are mixing two different and very important things here. Local government privatization today is no longer simply about the right of a developer to impose deed restrictions as in the early days of American common interest developments when they were used to keep out racial and ethic groups not wanted by the developer. Rather than being driven by developers, local government privatization is now land use policy adopted by muncipalities and counties to effectively privatize their traditional governmental obligations. It has nothing to do with developers'rights."
McKenzie responds: I know the municipal mandate situation changes the dynamics here, but it doesn't seem to change the way libertarians view HOAs. My point is to consider what Justice Brown, as an obvious libertarian, might say about HOAs. Therefore I'm adopting for purposes of discussion the perspective they take on HOAs in general. Libertarians--at least nearly all the ones I know--defend HOA living as an example of contract-based service provision, and argue that it is better than the taxation-based service provision of municipalities. Why? Because (they say) HOAs are voluntary organizations. I know, I know...municipal mandates, lack of choice, lack of disclosure...but that's what they say. And the initial declaration of CC&Rs is universally viewed by courts as a contract. It is a contract that is made by one party (the developer), and accepted by another (the original purchaser," and it "runs with the land," meaning that all subsequent purchasers must accept the same contract. Libertarians believe in freedom to contract for whatever relationship you want, even if it is exploitative. They support legalized prostitution, drug use, gambling, and even contracts to pollute. So the issue remains: does Justice Brown think HOAs are voluntary organizations, whose contract-based relationships (structured by the developers and purchasers and based on their rights to freely contract) should not be tampered with by the courts? My guess is, "yes."
If I had my druthers, libertarians would recognize that the facts don't fit their theory. Choice is restricted, municipal mandates to build HOA-run developments constitute government involvement, the CC&Rs are written by one party and non-negotiable by the buyer, the CC&Rs are often incomprehensible, etc. But I assure you, libertarians are by and large pro-HOA. In fact, they think HOAs are an example of Robert Nozick's private protective associations, as envisioned in his classic work of libertarian philosophy, Anarchy, State, and Utopia. If they had their way, libertarians would replace municipal governments with HOAs, so we'd all be living in them. If you don't believe me, read Bob Nelson's article.
Comments, anybody?
4 comments:
Whatever Libertarians or others may think about freedom to contract, it is purely academic and largely irrelevant in the context of CIDs today.
In many metro areas, the near monopoly of CIDs formed under local government land use policy has abrogated the individual's ability to choose. CID governing documents have thus become the de facto equivalent of municipal and county ordinances, not terms of so-called private contracts.
I beg to differ. What libertarian appellate court justices think of HOAs is extremely relevant. Janice Rogers Brown may end up on the United States Supreme Court before 2008. That's why President Bush has nominated her to be on the DC Circuit. It is a stepping stone to the USSC. The main reason for the controversy over the filibustering of justices is that both religious conservatives and libertarians (and even people who try to reconcile those two perspectives) could end up in policy making positions.
This implies a top down vs. bottom up process.
Courts decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution. It is this implied power of judicial review that provides the checks and balances as was clearly articulated in Marbury v. Madison (1803).
Policy decisions surrounding the HOA life are centered at the local or municipal level. Frankly, at this point, I am more concerned about the local County Commissioners views of HOAs than the USSC.
The more interesting question is: "what is driving this privatization of local government phenomena, and why?"
The notion that municipalities fiscal constraints and their subsequent tax windfall, similar to CAI's hot rhetoric: "HOAs protect property values" is simplistic and just doesn't hold up. At least in my view.
The trend of the rapid growth of CIDs --which Evan McKenzie was the first to define as the privatization of local government -- represents IMHO a massive failure of muncipalities, towns and counties.
Instead of devising ways to deal with residential growth, they effectively washed their hands of it and told developers and homebuyers, "You're on your own. Don't look to us for your infrastructure and governance needs."
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