HOAs and 2nd Amendment


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docsleepy
July 18, 2013, 06:42 AM
In the past 6 months I've had a tussle with my upscale, gated HOA community. I learned a lot about Florida law as a result.

I originally had an idea that I freely admit wasn't too bright -- a 100 yard varmint rifle range using 4 feet of sand backstop, backed by unoccupied structures on my property. A "collimator" sand structure that I planned to stop any errant projectiles, in my mind really increased rather than decreased the risk of an improperly deflected projectile. That recognition and a really hysterical meeting with members of the Board caused me to change.

I decided merely to put up a small 2-foot thick commercially available shed and fill it with a plywood sandbox, allowing for a backstop if there were civil disruptions worthy of needing to teach neighbors some skills.

Even this (unused) strcuture set the HOA off. However, I learned several things:
1. Florida has a recent statute that invalidate all local government firearms rules -- cities all over the state had to rescind their ordinances. 790.33 What is NOT perfectly clear is how it applies to private contracts (HOA Covenants).
2. However, Florida also has a statute (720.3035) that says basically that HOA's can't dream up new areas to enforce, if it really isn't covered in their Covenants. In my case, we had a fairly libertarian set of Covenants, and a fairly EXPANSIVE interpretation by some members who really had never read 720.3035....
3. Florida also has rules that require ANY meeting of an HOA board to have prior notification, openness to all members, and minutes. My particular HOA simply seemed incapable (despite multiple explanations in writing from me) of grasping that this applied to THEM as well.

In the end, I endured a very testy general membership meeting where my lawyer (they hadn't even gotten a lawyer) had to gently explain to them what were the limits of Associational power. It was very clear that the big issue to most of them was economic -- they felt their property value would decrease because of the need to notify any new buyer of a member of the Asssociation with a "target range". The kicker was that since I really had no particular plans to USE the sandbox, I specfically avoided nailing down any claim that it WAS a target range....which provided cover to all ofus. They were also trying to avoid the fact that there is apparently a target range right across the street; you can hear gunshots just about any day.

My concerns were more "prepper" in nature, but I did learn what considerable rights Floridians have with overreaching HOAs.

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jhb
July 18, 2013, 06:58 AM
Is the neighborhood setup with large lots? 5 to 10 acre or bigger for example?

I'm trying to wrap my head around the terms hoa and rifle range. I had about assumed any hoa setup or one of those horsey neighborhoods as I call them would about stop any backyard/range shooting chances. Learned something new today, thank you Sir.

docsleepy
July 18, 2013, 07:21 AM
Two, five, and by combination, 10 acre lots.

I ended up speaking with a recognized firearms expert who runs a company in that area, you gave me three ideas for a safe firing range that could actually be used: The first is a 15 foot tall berm, 20 feet wide, with in reaching U-shaped edges. The second is a concrete block house, Cement filling all the voids in the concrete block, plywood over the top, then concrete block over the plywood filled in. He uses such a structure actually indoors, and actually on airport property, to test defensive ballistic vests for the military law-enforcement market. The third, and most attractive to me, was to build Underground tornado shelter and to extend a small pipe culvert laterally underground as a pistol range. I spoke with a lawyer who actually built such underground range, quite lavish, 8 foot diameter culvert! You don't have to do it that lavish 18 inch plastic or galvanized will also work.

The underground tornado shelter with the septic tank culvert idea appealed to many in the homeowners association. It avoids noise. However, they were still hung up on the economic idea. They did not grasp that individuals have property rights. We are not necessarily bound by the fact that our constitutionally protected use of our own property may decrease their value in their eyes.

These are quite well-to-do owners, and they still don't get individual property rights!

docsleepy
July 18, 2013, 07:24 AM
In my particular case, I was much more interested in merely keeping my backstop,than ever using it. This gave us all cover from their concerns, and they ended up asking why in the world Had the meeting even been called. The answer was somewhat out of hysteria, and also out of overreaching bureaucratic control.

alsaqr
July 18, 2013, 09:37 AM
These are quite well-to-do owners, and they still don't get individual property rights!

i live in a development with a HOA. HOAs make their own covenants. Folks who buy/build homes in those areas agree to abide by the rules, simple as that.

Ten years ago i nearly bought 160 acres of land in a rural area of Idaho. Happened to mention hunting to the real estate agent and he nearly had a fit. The developer had established covenants that forbid hunting in an area that covered about six square miles.

SKILCZ
July 18, 2013, 10:21 AM
Interesting. I wonder what the laws are in my state regarding HOAs and whether individual rights can trump them.

Most of the HOAs near me ban guns, BB guns, and archery. That said, I know multiple people who practice archery in their back yards and others who shoot BB guns in their yards. I don't know anyone with their own range, but the lots are a lot smaller than yours around here, so I don't think it would be feasible from a noise standpoint (unless I used suppressors). I'm not even sure if it would be legal in my state, but it would be cool to have my own range!

Out of curiosity, what kind of lawyer did you use? How did you go about finding him/her?

docsleepy
July 18, 2013, 12:32 PM
QUOTE: " i live in a development with a HOA. HOAs make their own covenants. Folks who buy/build homes in those areas agree to abide by the rules, simple as that. "

No, that is not quite right. It is too simplistic. The truth is a bit more nuanced.

1. Constitutional rights have been held to be above Covenants in some cases, according to a NJ Supreme Court, at least in once case. Constitutional rights were ruled to be subject to "reasonable" "time manner and place" restrictions, but an HOA is unable to completely abolish them. Search for Khan.

2. Florida in 2007 explicitly spelled out (FS720.3035) that the interpretation of Covenants cannot be taken to extremes, but must follow either what is strictly written, or "reasonably inferred". The latter phrase is common in construction contracts, and means bascially, "obvious". This law caused an uproar in the trade groups that deal with HOAs.

3. In Florida Appelate Court in at least one District, a Court has ruled that Constitutional rights can trump Covenants. Search for Duvall.

4. In Florida, the STate "pre-empted" ALL governmental firearms regulation in favor of its own (FS 790.33). Cities all over the state were forced to rescind their laws against firing a weapon inside city limits, for example. The State has its own laws, and they are now the law of the State (except for minimal exceptions). Now, the language leans more to "government" than "HOA" but the language curiously includes "any person" and "any other entity", which suggests that HOAs should take notice.

So there are reasonable limits on HOAs. Further, HOA "rules" have even lower standing than HOA "Covenants"

docsleepy
July 18, 2013, 12:41 PM
SKILCZ: I found a real estate lawyer who, although much overworked due to foreclosures, was willing to deal with my issue.

I instructed him that we should follow Christ's example as much as possible, but that we also needed to maintain constitutional rights.

I did a huge amount of reading. I've been in a constiutional challenge once before, and I won that time.

I also contacted the NRA; they have a "lawyer assistance" number they will give you, which will save you $$$ because they can help your lawyer.

What my lawyer basically wanted was to find all CASE LAW revolving around the statutes that appeared to support our view of property rights. So I spent a lot of time hunting. HOAs apparently are a real problem in many cases (and I'm sure homeowners are a real problem in reverse, often, also). We wanted to actually learn what was TRULY CORRECT. One of the first things he did was to call the District Attorney and find out if they would CHARGE me for firing a weapon on my property. There are huge risks -- if a bullet went across my property line, you are in big trouble -- but virtually all of thse can be addressed. The "underground" pistol range built out of a tornado shelter or bomb shelter is the classic solution, and can be fairly easilyi built if you are willing to stick to 6 feet wide and pressure treated lumber. I heard of two such actual structures, and spoke to the owner of one of them. His was pretty plush. There is an entire industry now that does buried pre-fab survival structures if you want to go high dollar.

If you want to go cheap, build either a huge berm (15 feet talll) or a simple underground tube. I talked with a fellow who has a home range that turns out to be acknowledged to be better than what the SWAT team has available to them, so they come over to HIS range and use it. The obvious solution is to duplicate what the police themselves use, and they have virtually no way to criticize you. The Sheriff's office told everyone who asked, the same thing: in Florida, if you shoot at a safe backstop and are following the various laws in Chapter 790, you are OK.

I'm not a lawyer, and you should not take this as legal advice that would be applicable to YOU; instead you should use this as a jumping off point to do your own research and speak to your own lawyer. I spent $500 as a retainer, I think. What I gained in property rights was enormous....even though I don't plan to shoot on my land after listening to everyone.

Frank Ettin
July 18, 2013, 01:06 PM
...Constitutional rights have been held to be above Covenants in some cases, according to a NJ Supreme Court, at least in once case. Constitutional rights were ruled to be subject to "reasonable" "time manner and place" restrictions, but an HOA is unable to completely abolish them. Search for Khan....Misleading.

If you're referring to Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 482, 46 A.3d 507 (N.J., 2012), the ruling was based on the New Jersey Constitution and some unique New Jersey precedent regarding the New Jersey Constitution.

The United States Supreme Court has ruled that the United States Constitution does not regulate private conduct. See Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614 (U. S. Supreme Court, 1991) (emphasis added): ....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. ....


...In Florida Appelate Court in at least one District, a Court has ruled that Constitutional rights can trump Covenants. Search for Duvall....You need to provide a proper citation. It should not be our obligation to search for a case you cite. I searched Florida appellate court cases in a legal data base to which I subscribe and found 114 cases with "Duvall" in the caption.

csspecs
July 18, 2013, 01:14 PM
Going underground is nice, you do need forced air ventilation, and the tunnel needs to be the exit.
I'd suggest a mini shed with multiple layers of sound absorbing insulation made into louvers to allow the air to get out while canceling the sound.

If done right a 12 gauge is about as loud as a brad nailer in your garage.

AKElroy
July 18, 2013, 01:30 PM
There are two issues here, one legal, and one based in being a good neighbor. I am a SERIOUS private property rights advocate, but I recently had an an issue that tested this. My neighbor purchased 5 acres that runs across the back of my property. He then built a workshop 10' behind MY fence, ruining the view that was the primary reason for choosing this lot, and paying a $40,000 premium for it. I did not contact the HOA, as the property he purchased was a landlocked parcel owned by a local utility, and was not technically in the neighborhood.

He had every right legally to do what he did, but that did not prevent me having a blunt conversation with him regarding the $40,000 value he likely just took from me. He promptly, to his credit, moved it. We are still friendly.

Just because you have a legal ability to do something does not mean it is morally proper to do, does it? I'm betting that if one of my neighbors builds a shooting range in his back yard, I'm going to have an issue selling my home.

alsaqr
July 18, 2013, 02:50 PM
Just because you have a legal ability to do something does not mean it is morally proper to do, does it?

Good observation.

My firing range is 400 yards from the closest neighbors home. The guy works six long days in the oil fields. They sleep late on Sunday and then go to church. i do not shoot on Sundays.

The next closest neighbor is about one mile from my range.

docsleepy
July 18, 2013, 03:24 PM
http://pvtgov.wordpress.com/2010/12/page/2/

The court quoted:

The most valuable aspect of the ownership of property is the right to use it. Any infringement on the owner’s full and free use of privately owned property, whether the result of physical limitations or governmentally enacted restrictions, is a direct limitation on, and diminution of, the value of the property and the value of its ownership and accordingly triggers constitutional protections. Snyder v. Bd. of Cnty. Comm’rs, 595 So.2d 65 (1991).


This case is not directly on point, but it has some important statements in my mind at least not being a lawyer.

docsleepy
July 18, 2013, 03:27 PM
"There are two issues here, one legal, and one based in being a good neighbor. I am a SERIOUS private property rights advocate, but I recently had an an issue that tested this. My neighbor purchased 5 acres that runs across the back of my property. He then built a workshop 10' behind MY fence, ruining the view that was the primary reason for choosing this lot, and paying a $40,000 premium for it. I did not contact the HOA, as the property he purchased was a landlocked parcel owned by a local utility, and was not technically in the neighborhood.

He had every right legally to do what he did, but that did not prevent me having a blunt conversation with him regarding the $40,000 value he likely just took from me. He promptly, to his credit, moved it. We are still friendly.

Just because you have a legal ability to do something does not mean it is morally proper to do, does it? I'm betting that if one of my neighbors builds a shooting range in his back yard, I'm going to have an issue selling my home."

One can always be courteous to their neighbors. However if we are unable to exercise any freedoms at all, for fear of harming our neighbors interests, we have no freedom. Property rights cease to exist. The same argument could be made about people who took and people from another race, adopted a child of a different race, or sold to a person of a different race. My neighbors complete disregard of my economic rights was astonishing.

Frank Ettin
July 18, 2013, 03:30 PM
http://pvtgov.wordpress.com/2010/12/page/2/

The court quoted:

The most valuable aspect of the ownership of property is the right to use it. Any infringement on the owner’s full and free use of privately owned property, whether the result of physical limitations or governmentally enacted restrictions, is a direct limitation on, and diminution of, the value of the property and the value of its ownership and accordingly triggers constitutional protections. Snyder v. Bd. of Cnty. Comm’rs, 595 So.2d 65 (1991).


This case is not directly on point, but it has some important statements in my mind at least not being a lawyer.No it's not on point at all and nothing in the decision really has anything to do with the topic under discussion here.

Please stop posting irrelevant, off-topic posts which can merely cause confusing regarding the important legal issues which have been raised here.

And yes, I am a lawyer.

Frank Ettin
July 18, 2013, 03:46 PM
On further review of this thread, I'm cutting it off. The Legal Forum is a place to:Get informed on issues affecting the right to keep and bear arms. Coordinate activism, debate with allies and opponents. Discuss laws concerning firearm ownership, concealed carry and self-defense.

The thread started out only marginally on topic, and only because it concerned the OP planning to construct a shooting range. It has since devolved to be almost entirely about HOAs in general and property rights of persons owning property subject to HOAs.

That's not what we're here to discuss.

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