Twin Rivers decision tomorrow...
I have it on the best authority that the much-anticipated ruling on the Twin Rivers litigation will be announced to the parties tomorrow (Tuesday, 2/17) at noon. The decision will be released to the press on Wednesday. Stay tuned...

The judge will be deciding whether or not the New Jersey state constitution restricts the activities of "private" homeowner associations that are (in the plaintiffs' view) the functional equivalent of a municipality. If he rules for the plaintiffs, it would be a watershed event in the history of HOAs.

In the interest of full disclosure, I have been arguing in print since 1985 for this basic position, and as the expert witness for the plaintiffs in the Twin Rivers case (the Committee for a Better Twin Rivers) I also have an interest in seeing the side I support win the case.

Long-Distance Picketing: Wave of the Future?
Grocery Workers Protest at Home of Safeway CEO--sort of. Unfortunately for them, he lives in a gated community
from KPIX/KCBS
Wed Jan 28, 4:01 PM ET

Ann Notarangelo

Hundreds of grocery store workers marched on the Alamo estate of Safeway's CEO Wednesday

Some religious leaders from Southern California joined the group in asking for Steve Burd to end a bitter strike in Southern California.


The marchers were stopped about a half-mile from the gates to Burd's home, but later, a delegation of five clergy members were allowed to deliver messages from the union members and their supporters.

Full story here
Thanks to the redoubtable Fred Pilot for the tip to this story. Police, process servers, picketers, presidential candidates...nobody can get into these places. The mighty waves of democracy are crashing into vapor on the gates of private communities--is that about the size of it? There is a French Revolution smell to this whole thing. I wonder what the name of this place is...Thermidor Acres? Robespierre Place? Girondin Gardens?

Are local government perennially endangered?
The last quarter century has given us the end of the Great Society programs with their emphasis on federal aid to cities; the property tax revolt that clamped down on the ability of municipalities to jack up property taxes whenever they felt the need; the rise of homeowner associations and other forms of privatized local government alternatives; and a tremendous increase in hiring and spending by local governments. With slashed revenue sources and competition from the private sector, local government as a sector grew like crazy anyway. And all this amid predictions of doom and gloom from pundits like me.

Remember that movie Halloween where the monster keeps gets "killed" but every time, no matter what happens to him, a few minutes later he suddenly sits bolt upright while Jamie Lee Curtis is finally calling the police like she should have done about five minutes into the film?

Now, I'll grant you that some municipalities are indeed in sorry shape. There are some inner-ring Chicago suburbs--Harvey, for example--that are in desperate condition. Crime, no tax base, horrible schools, property values through the floor. I don't know what will become of places like that. But it is surprising how many inner ring suburbs have found some way to make it all work. Maybe they find a way to take advantage of their location, architecture, famous former inhabitants, a natural disaster, some part of the natural environment, a lawsuit--there are many ways.

And even if you can't do any of that, if you can just attract new common interest housing, then you can impose major concessions on the developer ("Build us a new high school!"), followed by impact fees and double taxation of the new HOA residents. And then, Bob's your uncle...life is good.

Gilbert, AZ, mandating HOAs
Thanks to the Yahoo group "hoanet" for some excellent work on developing the facts on the most important trend in the rise of residential private government: the increasingly common practice of cities requiring developers to create HOAs in new housing as the price of building in lucrative high-density PUD zones. This practice eliminates choice in the new housing market and conscripts people into HOAs whether they want them or not, and then forever after they are told by the courts that they chose HOA living of their own free will.
So...check out Gilbert, AZ, where you can read the Public Review Draft of Article 3.104 B-9 of its Unified Land Development Code. The section provides that, for developers who want to build in the planned development areas where higher density is permitted,
"The Planning Commission may recommend, and the Town Council may impose, conditions of approval including, but not limited to, the following matters:...9. Requirements for establishment of homeowners or property owners associations or other mechanisms to assure continued maintenance of landscape areas, trails, open spaces, shared parking and access areas, homeowners association facilities, fences.."

Now, this is what is being done in other parts of the nation, including right here in Chicago. Builders want to develop in the most desirable and profitable areas where higher density is permitted. Cities require them to create HOAs as a condition of entry into these areas. Why? Because the HOA does the city government's job in large part, and the city collects the same amount of tax dollars from the new owners without having to build the infrastructure or provide services. Pretty sweet, isn't it? In short, HOAs are a cash cow for local government. But then when the owners start complaining about loss of basic liberties and foreclosure, and other problems, the city suddenly becomes deaf. Solving the problems is somebody else's job--like, well...the court system, paid for by the state.
How long will this be allowed to continue?

Read the code for yourself right here.

Oh, and I read elsewhere that the house referred to in the story below, that was sold at foreclosure auction for $70,000, was recently appraised at $280,000. I can't confirm this, but that doesn't seem high for California.

Couple lose their home over $120 debt--state legislator promises bill to strip HOAs of foreclosure power
By Michael Kolber -- Bee Staff Writer
Published 2:15 a.m. PST Saturday, January 24, 2004
COPPEROPOLIS -- A retired couple's dispute with their homeowners association has spiraled out of control in this Calaveras County community -- and now they have lost their home less than a year after failing to pay $120 in annual dues.
Anita Radcliff, who owns the home with her husband, Thomas, said she had little hope of winning back the house, which the association's collection firm sold at a foreclosure auction in December for $70,000....Their case is a reminder that associations have the power to foreclose for past-due bills, regardless of the amount. State Sen. Rico Oller, R-San Andreas, said Thursday that he plans to author legislation this year that would take away the rights of associations to foreclose.
"It was $120, and they're going to take away his house. That should never happen in America," Oller said. "This is a case of an association exercising what is arguably their right, but in a totally unreasonable and extreme way."
Read the whole thing here.

California Law Revision Commission receives comments on its recommendations for architectural review procedures
The Commission grinds onward with sixteen pages of comments it has received from three people on its recommendation that existing California case law on architectural review should be codified--meaning, written into statutory law. The subtance of the law would say that architectural review decisions (request by owners to alter or add to their separate unit or interest) should be "made in good faith, pursuant to a fair and reasonable procedure, and that the decision not be unreasonable, arbitrary, or capricious." Decisions would have to be put in writing, and if denied, the owner would have a "right of reconsideration by the board of directors" who denied the original request.
You can read the whole thing here.

Florida Legislature Select Committee Recommendations
From: Florida House of Representatives--
Representative Julio Robaina,
District 117:
First Report And Recommendations By Chairman Julio Robaina,
SELECT COMMITTEE ON CONDOMINIUM ASSOCIATION GOVERNANCE
--Some of the highlights of the recommendations:
--“Buyer Beware,” requiring a new Question and Answer sheet to be given to the potential buyer at the time of contract and again at the closing
--Background checks for potential board members
--conflict of interest reforms
--Issues voted on by board members that create a fiscal impact or hardship for the owner, must be approved and voted on under a special election by the majority of the unit owners
Full Report here.

Followup to rant below: So here's the the Defense of Marriage Act that John Edwards doesn't understand:

Now, read this and decide if this man is ready to be President:

1 USCA § 7. Definition of 'marriage' and 'spouse'

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".

28 USCA § 1738C. Certain acts, records, and proceedings and the effect thereof

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".

OK, that's it. Now, how hard is that to grasp, for a practicing attorney who thinks he is smart enough to be President of the United States? Think he's ready to do the job? I don't.

Off-topic rant follows--I just can't stand it...
...that everybody is letting John Edward off the hook for completely misunderstanding the Defense of Marriage Act. Here is what he said on Thursday: ..."what happened with the Defense of Marriage Act is it took away the power of states, like Vermont, to be able to do what they chose to do about civil unions, about these kinds of marriage issues. These are issues that should be left -- Massachusetts, for example, has just made a decision, the supreme court at least has made a decision, that embraces the notion of gay marriage. I think these are decisions that the states should have the power to make. And the Defense of Marriage Act, as I understand it -- you're right, I wasn't there when it was passed -- but as I understand it, it would have taken away that power. And I think that's wrong. That power should not be taken away from the states. "
He was then given an opportunity to correct himself, and he insisted on this bone-head position even though it was obvious that Brit Hume was telling him he was wrong:
"HUME: Does not the Defense of Marriage Act specifically say that the court rulings in one state, which might, for example, recognize a gay marriage, may not be imposed on anther state? In other words, doesn't the Defense of Marriage go to the very position which you yourself take?
EDWARDS: No, the Defense of Marriage -- first of all, I wasn't in the Congress, I don't claim to be an expert on this. But as I understand the Defense of Marriage Act, it would take away the power of some states to choose whether they would recognize or not recognize gay marriages. That's my understanding of it."

Now, I have three problems with this. The first is that he is completely wrong. That is exactly the opposite of what the DOMA did. The act is very short and simple, and it does two things. It defines "marriage" as a man-woman union, wherever the word appears in federal law, and it absolves states from the obligation they would ordinarily have under the Full Faith and Credit Clause to recognize gay marriages authorized by other states. So, as Hume correctly said, the Act accomplished exactly what Edwards says still needs to be done.
Second, it is simply amazing to me that the press blew off such an enormous gaffe. If Dan Quayle or any other Republican did this, they would be forever branded as an airhead pretty-boy who was too lightweight for the presidency.
Three, why isn't he being criticized for his ridiculous excuse? Edwards blithely says, well, I wasn't in the Senate when this passed, and the press dutifullly accepts that nonsense as if it made sense. Is he only responsible for knowing about laws passed since he showed up in the Senate? How about the First Amendment? The Commerce Clause? The Civil Rights Acts? Can he claim that the Fair Housing Act allows racial discrimination in housing, and then when he is told it bans discrimination, just say, "Oh. Well, I wasn't in the Senate in 1968, so I'm no expert, but that's my understanding."
What was Edward doing in 1996, when the DOMA passed? He was a practicing attorney, for Pete's sake! And now he's a Senator, and he wants to be President in a year. And he's been running around the country debating and speaking for months. And the subject of gay marriage just happens to be hot now, with the Mass. supreme court making their famous decision. So why on earth is he spouting off about gay marriage when he hasn't bothered to read only the federal law on the subject? (The law can be found at 1 USCA 7 (the definition part) and 28 USCA 1738C (the full faith and credit part.)
This la-de-dah attitude toward the substance of policy is increasingly common, I think. Politicians are allowed to spout off about complicated issues based on their ideological orientation, their interest group base, and some half-baked understanding of the facts and the law. Then it's on to the next issue and the next news cycle, and it's as though it never happened. Al Sharpton's inability to distinguish between the Federal Reserve Board and the International Monetary Fund was similarly glossed over in the next day's news. The only difference between the two candidates' mistakes is that Sharpton has no chance of ever being elected. But people are now claiming that Edwards is a serious contender.
Wow. Talk about a guy who will need on-the-job training.

Glad to hear the Middle East is in good hands now...

After Tony and Kofi fail, Brad and Jennifer try Mid-East diplomacy
By Inigo Gilmore in Jerusalem
from The Telegraph
(Filed: 26/10/2003)


Bill Clinton failed, Tony Blair drew a blank and Kofi Annan made little progress. But now a team of Hollywood film stars is about to visit the Middle East on a private peace mission, in the belief that their charms will work magic on the Israeli-Arab conflict.

Brad Pitt, his wife, Jennifer Aniston, and Danny DeVito are among the stars who aim to succeed where world statesmen have stumbled.

"The past few years of conflict mean that yet another generation of Israelis and Palestinians will grow up in hatred," reads a statement from Pitt and Aniston. "We cannot allow that to happen."

Here's the whole story. Now, if only we could get them to take on HOA mediation...

Oppression: pick your brand, public or private
Apropos Oak Park, this place bans handguns, overnight parking on the streets, nuclear weapons (via signs posted at all main street entrances to the village), and all forms of non-niceness. It's the municipal equivalent of an HOA.

HOA tackles swingset blight
Now, here's something to be proud of. Stamping out those kiddie swing sets that are a little too tall. Way to go, board members. Nothing like grabbing favorable press for your community.

"Kids' play-set clash pits Gilbert families vs. HOA"

by Stephanie Paterik
The Arizona Republic
Oct. 25, 2003 12:00 AM

"Joel and Kerri Pogar have written the governor, rounded up their neighbors and spent six months in a law library drafting a suit against their homeowners association.

"The issue at hand? A backyard play set.

"The Gilbert couple say the HOA in Power Ranch, one of the town's poshest neighborhoods, forced them to get rid of a $4,000 play set because it was 2 feet higher than the 10 feet allowed by HOA design standards."


Read it all here.

Moving is hell
My wife and kids and I are in the middle of packing for a move from The People's Republic of Oak Park, Illinois, in the heart of Cook County, to a suburban setting in Lake County where I am told there are Republicans. Not in museums or zoos, either. They actually roam around free and even vote. All our neighbors here in OP--one of the strongest bastions of the left wing to be found on any continent--think that we will be shocked by the Neanderthal mentality that will surround us. I kind of doubt it. I have no problem seeing a flag flying from most every porch. Ours is up every day, along with a "We Support our Troops" sign, and we are a little tired of being the only ones. In fact, I think HOAs would be better places if they were a little less tightly-wound about this whole flag thing. When did the American flag ever reduce property values?

Go Cubs!
Condolences to Floridians, who have to deal with all the issues of common interest housing as well as the Floundering Fish. As I write it is 7-0 Cubs in Game 4. Matt Clement, he of the cow-pie-on-the-chin, Amish-farmer-on-the-mound look, is inexplicably winning the game. Until tonight I considered him a curse on the Cubs, some sort of albatross, or perhaps albacore, who was sent to torment the team that has been sentenced to permanent ignomnity for not letting a guy bring his goat into the stadium in 1947, or some such rot. But here's a guy with a goat beard winning a game that any rational human would think he was going to lose. It could change at any minute, but so far it is a strange and terrible thing to behold. As a Chicagoan I can do nothing but chortle with glee as The Man With the Strange Thing on His Face inches toward a victory.
Go figure.

Request for comments on CAI Bill of Rights
In February I will be speaking at the annual Community Association Law Seminar sponsored by the Community Associations Institute. I'll be at a panel discussion on "Is 'Rights and Responsibilities for Better Communities' the Answer to HOA Critics?" That is a reference to a document that you can view on line at the CAI website, here. The other panelists will be attorneys Molly Foley-Healey (primary author of "Rights and Responsibilities") and Dave Ramsey, and property manager Sandra Denton.
I would appreciate receiving any intelligent, reasoned opinion on the subject from interested observers. Note "intelligent, reasoned." That means, please, no venomous screeds, conspiracy diatribes, or calls for the abolition of common interest housing. This is a panel about whether or not the CAI "Rights and Responsibilities" document will satisfy HOA critics. If yes, then why? If no, then why not? I don't promise to answer all the e-mails I get on this, although I'll try to acknowledge them all. But I am genuinely interested in taking in whatever you all have to say. The deadline for submission of my paper to CAI is Monday, November 3, so keep that in mind. Thanks for your help.

McKenzie is back on the air!
Sorry for the long absence. We went on vacation in Panara, Iowa and had no computer access at all except for one visit to a nice lady at the management office of the local homeowner association who let me sit at her desk and check my e-mail. How's that for irony?
Then I went to the American Political Science Association annual meeting in Philadelphia, where 5000 political scientists had to wait in long lines to check their e-mail at about 12 computers.
Then my son and I went to Glasgow, Scotland, where I spoke at an international conference on gated communities. This was put on by the University of Glasgow, and it was a great success. The papers will be posted on the web soon, along with some of the Powerpoint presentations, and I'll give you all the URL when it is up.

Can't blame this on an HOA...
"After eight months of scouring Northern California for a slice of tranquility to purchase as his family's vacation property, Berkeley resident B. J. Miller found 40 acres deep in the El Dorado County wilderness. With the closest neighbor a quarter-mile away, Miller began settling into his corner of the wild. The troubles of the world, however, caught up with him. Sometime in the past two months, somebody stole everything inside Miller's house -- and then stole the house. "
As Thomas Hobbes said, life in a state of nature is solitary, poor, nasty, brutish, and short.
Read the story.

California Law Revision Commission site
After reading the previous post, some people may want to check out the Commission's work product to date. Follow this link to the
California Law Revision Commission.

Remarkable memo to California Law Revision Commission
I can't vouch for the authenticity of this memo, but it looks to be a genuine correspondence from retired Judge Charles Egan Goff to the California Law Revision Commission, the body that is currently considering major reforms to the law governing HOAs in California. Here's the lead, followed by a link to the whole document:

Charles Egan Goff
California
MEMORANDUM - July 3, 2001
TO: CALIFORNIA LAW REVISION COMMISSION

RE: HOMEOWNERS' ASSOCIATIONS - STUDY H-851 Law Revision Commission
RECEIVED
JUL 12 2001

File:__________________

In 1791 Thomas Paine wrote in Rights of Man: "Defects of every government
and constitution, both as to principals and form, must be on a parity, be as
open to discussion as the defects of a law, and it is the duty which every
man owes to society to point them out...."

It's a tribute to California's Legislature and Executive that this body
exists to improve their work, even to disagree with it when necessary. So it
is especially an honor for this worshipper of Our Constitution to address
you.

Briefly I beg you to consider turning Homeowners' Associations from purely
for-profit business enterprises into democratic societies, recalling Madison
's statement: "Justice is the end of government. It is the end of civil
society. It ever has been and ever will be pursued until it is obtained, or
until liberty be lost in the pursuit." (Federalist #52.) This is an ancient
law: "Justice and only justice you shall pursue." (Deuteronomy 16:19.)

My concerns and recommendations are six...

...and on that dramatic note, you are invited to proceed to the full document. I added the italics around the money quote.