Land Use Prof Blog

Dispute over Yard Sign Destroys Fairfax HOA

A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election.  After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area.  From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.

Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.

Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.

“It destroyed our community,” Maria Farran said.

The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim.  It made some new law:

In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants. 

 You can read the whole article for a great description of the legal issues and the story.  As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country.  And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.

Thanks to Helen Jenkins for the pointer.

Matt Festa

Sale of Frank Lloyd Wright House Assures Preservation

Here's a story out of Arizona, where apparently a historic Frank Lloyd Wright house was under dispute.   From the New York Times story by Fernanda Santos and Michael Kimmelman:

The conservancy and other organizations petitioned the city in June to consider giving the house landmark status, after they learned of the former owners’ plans to split the lot to build the new homes. Three local government bodies approved the landmark designation, but the Council, which has the final say, postponed its vote twice, in part to give the parties more time to strike some type of compromise. There was also uncertainty over how some of its members would vote, given the homeowners’ lack of consent for the landmark process.

“If ever there was a case to balance private property rights versus the public good, to save something historically important to the cultural legacy of the city, this was it,” Larry Woodin, the president of the conservancy, said in an interview. 

Seems like a good result here, while communities across the nation continue to struggle with how to strike that balance.

Matt Festa

Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation

Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation?  The abstract:

Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.

The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.

While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.

Matt Festa

Salkin on Callies on Regulation in Hawai'i

Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Matt Festa

Tear Down This Mansion?

A Michigan appellate court has ordered the owner to tear down what looks to be a fairly elaborate and presumably expensive home, because it is only 80 feet from the neighboring property, instead of the 100 feet required in the deed restrictions.  Talk about strict enforcement!  But as the neighbors say in the video, rules are rules. 

The news story is here at msnbc.com.  Might be an interesting clip to show for servitudes, land use, or real estate transactions.  Thanks to Helen Jenkins for the pointer.

Matt Festa

Three Dimensional Master Plan?

 
Hello all and thanks for the welcome, Matt.

For years cities, such as Montreal (the RESO), have been developing space underground.  In what CNN reports as a "first," Helsinki has developed an Underground Master Plan.  The plan designates a diverse group of uses for the underground area, ranging from industrial to recreation uses, such as an existing swimming pool (which, fortunately, doubles as a bunker when necessary).  According to the report, Helsinki sits on bedrock strong enough to support the existing streetscape even when space is carved out for the lower levels.  The CNN report claims a host of environmental benefits from the action, many of which are disputed in the comments.

As cities such as Helsinki start to think about the relationship between the street level and the subsurface (as inhabitable space), the next step may be to craft a three dimensional master plan.  And who knows, this may be Seattle's chance to recommission its underground, although "[w]hen your dreams tire, they go underground and out of kindness that's where they stay." (Margaret Fuller).

Jon Rosenbloom

Federal Investigation into Nevada HOAs

Many suspected that local prosecutors delayed an investigation into Las Vegas homeowners associations because of the powerful people potentially involved.  High-powered attorneys and former police officers may be implicated in a conspiracy effectuated through a homeowners association.

The Las Vegas Review reports that the local prosecutors were recently removed so that federal prosecutors from Washington could take over over.  The details of the alleged conspiracy?

Investigators have targeted dozens of people in what they say was a scheme to rig homeowner association board elections to position conspirators -- including some former Las Vegas police officers -- who would push for lawsuits over construction defects. Legal work and repair contracts then would be funneled to associated lawyers and companies. Millions of dollars were said to be at stake.

Look for more of the same as HOAs grow in number and power.

McKay Cunningham

 

Wiseman on Public Communities, Private Rules

Hannah J. Wiseman (Texas) has posted Public Communities, Private Rules, Georgetown Law Journal, Vol. 98, No. 3 (2010).  The abstract:

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will also highlight their problems, however. Many community consumers are marginally familiar with private covenants and traditional zoning, but they are largely unaware of the relatively new zoning overlays used to form public rule-bound communities. Yet the rules in overlays are extensive, are applied to existing landowners, and are not easily modified to meet changing community needs over time. And covenants, despite offering a more traditional tool for aesthetic control, create their own problems of incomplete consumer notice and barriers to effective modification. This Article will analyze the impact of these problems, as well as a lack of responsiveness to ongoing consumer demands for the maintenance of desired rules, on rule-bound communities’ ability to meet consumer demands for a community aesthetic. It will conclude that rule-bound communities should provide better visual notice of rules and should implement processes that allow for residents to better influence the initial content of rules and how rules are perpetuated or changed.

Matt Festa

Not in My Neighborhood

I am really glad to be joining Land Use Prof Blog as a guest blogger.  Over the next few weeks, I look forward to contributing to an already lively discussion.  My scholarship and practice interests have recently focused on land trusts, land banks and any other form of direct community control of land resources.  If you wish to contact me with an idea or item, email me at JKelly[at]ubalt[dot]edu.

2010 marks the 100-year anniversary of the nation’s first racial zoning ordinance. (see Garrett Power’s law review article here).  The Baltimore City Council passed it in the wake of nationwide race riots that followed Jack Johnson’s defense of the world heavyweight boxing title.  I have just been reading a copy of Antero Pietila’s Not in My Neighborhood: How Bigotry Shaped a Great American City lent to me by my colleague, Odeana Neal.  It is an engaging chronicle of de jure and de facto residential segregation in 20^th century Baltimore, exploring the exclusion of both Jews and African-Americans.

 

Pietila brings out the characters and stories that illustrate the high-minded racism of the eugenics era and the market-justified redlining of the FHA-predecessor, the Home Owners' Loan Corporation.  The book kicks into high gear with its exploration of the moral ambiguity of “blockbusting” (civil rights advocacy? cynically manipulative profiteering? both?) in the wake of the U.S. Supreme Court’s 1948 decision in Shelley v. Kraemer. Amidst these essential narratives are a few hidden gems such as the stories behind the siting of Morgan College (now Morgan State University) and the Social Security Administration and the roles these institutions played in anchoring Baltimore's largest African-American middle-class enclaves.  Those considering the book for supplemental reading in land use and property courses might want to check out this 4/27 NPR local radio interview with the author.

Jim Kelly

Manufactured Housing - People of Hope

While we're on the subject of manufactured housing I'd like to give a shout out to People of Hope.  This Athens-based organization is creating the first resident-controlled, affordable manufactured home development in Georgia.  This organization arose out of an eviction of a group of tenants from a mobile home park in Athens when the owner sold off the land for development.  Like many places, Athens is short on affordable housing in general, so these tenants took matters into their own hands.  With the help of the fine folks at Georgia Legal Services and Sutherland law firm, as well as Athens Land Trust and the Georgia Community Loan Fund, these folks are well on their way to realizing their goals.

Jamie Baker Roskie

Tensions between HOA super liens and purchasers at foreclosure

I've been away for awhile and am happy (and grateful) that my fellow bloggers have contributed such interesting posts over the last few months.  I have really enjoyed reading the posts and learning from them.

My contribution today comes, fittingly, from Nevada.  Nevada, in addition to approximately fifteen other states, has enacted a super lien law in the wake of the foreclosure crisis.  Under this law, a lien imposed by a homeowner association on a house jumps ahead in priority over earlier recorded liens, including mortgages.  As a result, a purchaser must pay off the HOA lien at foreclosure in order to own the title free and clear.  Under the Nevada statute, HOAs are able to collect up to nine months of delinquent assessments as well as other charges through the super lien process.  What is unclear, and now the subject of a lawsuit, is exactly how much HOAs can charge above delinquent assessments.  Purchasers at foreclosure argue that they are routinely surprised late in the foreclosure process when HOAs (and, more often, their collection agencies) deliver shockingly high bills that include collection fees, penalties, and interest charges.  HOAs argue that these fees are necessary to keep communities afloat in light of the high rate of foreclosures.   

Because the Nevada legislature meets sparingly (it is next due in session during the Winter/Spring of 2011), it will likely be up to the courts to settle the statutory ambiguity.  What I find interesting in this dispute is that the only entities capable of engendering more ill will than over-zealous lenders are HOAs.  In their defense, HOAs are often a homeowner's last defense in this foreclosure crisis by maintaining the quality of surrounding homes.  On the other hand, many see these perceived, excessive HOA charges as yet another manifestation of unchecked and intrusive power over homes and communities.

Ngai Pindell