Can H.O.A.s Ban Guns? Part 2

Unless we knows the setup of the charter of the OP article's HOA, we can't know from that squib if the guy is threatened or actually banned. We don't know if that particular HOA must have a super-majority vote to change the rules.

At this point, we're merely speculating from inadequate info. If somebody wants to monitor the deal and later on start a new thread, fine.

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Yet he has been threatened by his Homeowners Association and prohibited from earning a living as he chooses
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But none of that seems to protect him from the Falcon Point HOA which has passed a rule specifically prohibiting residents from buying and selling firearms in the neighborhood

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A lawyer who represents Falcon Pointe Association sent a statement to KEYE which said, "The Association enacted a prohibition against operating a home based firearms sales business and did so in the best interest of the residents in the neighborhood."

Neighbors said they did not receive any heads-up about the amendment to the existing rule on home-based businesses.

"I pay dues. I expect somebody to tell me something when you change something that major," neighbor Wayne Williamson said.

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C. Powers and Duties.

Section 17. Powers. The Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association’s affairs and, as provided by law, may do or cause to be done all acts and things as are not by the Declaration, Articles, or these By-Laws directed to be done and exercised exclusively by the Voting Representatives or the membership generally.

The Board of Directors shall delegate to one of its members the authority to act on behalf of the Board of Directors on all matters relating to the duties of the managing agent or manager, if any, which might arise between meetings of the Board of Directors.

In addition to the duties imposed by these By-Laws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall have the power to establish policies relating to, and shall be responsible for performing or causing to be performed, the following, in way of explanation, but not limitation:

(a) preparation and adoption, in accordance with Article X of the Declaration, of annual budgets in which there shall be established the contribution of each Owner to the Common Expenses and Neighborhood Expenses;

(b) making assessments to defray the Common Expenses and Neighborhood Expenses, establishing the means and methods of collecting such assessments, and establishing the payment schedule for Base Assessments and any Neighborhood Assessments, if other than annual;

(c) providing for the operation, care, upkeep, and maintenance of all of the Area of Common Responsibility;

(d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and the maintenance, operation, repair, and replacement of its property and the Area of Common Responsibility and, where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and materials to be used by such personnel in the performance of their duties;

(e) collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to operate the Association; provided, any reserve fund may be deposited, in the directors’ best business judgment, in depositories other than banks;

(f) making and amending rules and regulations;

(g) opening of bank accounts on behalf of the Association and designating the signatories required;

(h) making or contacting for the making of repairs, additions, and improvements to or alterations of the Common Area in accordance with the other provisions of the Declaration and these By-Laws after damage or destruction by fire or other casualty;

(i) enforcing by legal means the provisions of the Declaration, these By- Laws, and the rules and regulations adopted by it and bringing any proceedings which may be instituted on behalf of or against the Owners concerning the Association;

(j) obtaining and carrying insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof;

(k) paying the costs of all services rendered to the Association or its Members and not chargeable directly to specific Owners;

(l) keeping books with detailed accounts of the receipts and expenditures affecting the Association and its administration, specifying the maintenance and repair expenses and any other expenses incurred;

(m) maintaining a membership register reflecting, in alphabetical order, the names, Unit addresses and mailing addresses of all Members;

(n) making available to any prospective purchaser of a Unit, any Owner of a Unit, any first Mortgagee, and the holders, insurers, and guarantors of a first Mortgage on any Unit, current copies of the Declaration, the Articles of Incorporation, the By-Laws rules governing the Unit and all other books, records, and financial statements of the Association; and

(o) permitting utility suppliers to use portions of the Common Area reasonably necessary to the ongoing development or operation of the Properties.

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You say it's not ambiguous, and thus the HOA can do what it did. So, what's to discuss?

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Even this particular thread is not really about firearms as firearms; it's about the ability of the HOA to change the rules for whatever reason.

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In some parts of the country it's very hard to find a decent home in a neighborhood that's not under an HOA. Many areas have essentially no neighborhoods under 20 years old that are free of them.

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How do cities mandate or require community associations?

Many cities require that all new construction must be in CIDs. They do this in several ways, but the most common takes advantage of PUD zoning. Cities have planned unit development zones where housing is exempt from setback and other density requirements. Developers want access to PUD zones to obtain higher density and thus higher profits. So, the City requires all development in PUD zones to have certain features (open spaces, landscape vegetation, perimeter walls). They, the City requires that there must be an entity to maintain features in perpetuity. HOAs are the recommended option.

Result: the City in effect mandates HOAs in all new construction within PUD zone.

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Consumers find their choices constrained in many ways. Although there is great variation in architectural features among CIDS, there is much less variation in many of the basic terms of governing documents, which tend to be standardized by the legal profession and the mortgage insurance industry. Leading community association lawyer Wayne Hyatt has criticized the “legal inertia” and “reliance upon forms” that produce this standardization (1998, 336). Even where variation among CID regimes does exist, the ability to make informed choices is reduced by the standard practice of encumbering each unit with voluminous sets of governing documents drafted in legalese, instead of simple guidelines written in plain English. Many provisions are incomprehensible except to an attorney—and a specialist at that.

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Choice is further restricted because in the most CID-heavy areas, some governments virtually or literally mandate CIDs in new housing. This reduces or eliminates the ability of consumers to express a preference for CID versus non-CID units at a given price

-Evan McKenzie
"Common-Interest Housing in the Communities of Tomorrow" (PDF)
2003

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What's more ominous, now that more than 80 percent of new housing in the country is being built within CIDs, is the professional industries that have grown around them -- complete with their own lobbying groups -- eager to make sure government oversight remains at a minimum.

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To help me understand how homeowners associations have evolved, McKenzie offers a thumbnail history. "The original reason for all HOAs was to enforce race-restrictive covenants," he says, explaining that such organizations predate the invention of the CID, with its shared responsibility to maintain property. "But in the 1960s and '70s, as land prices were getting more expensive, developers started creating [CIDs] in order to create more density and therefore increase profitability."

In devising CIDs, developers managed to build more houses on less land -- avoiding local density codes -- through creation of "private communities" with their own roads and utilities infrastructure. "They build a shared infrastructure with common utility lines so the physical infrastructure is a lot cheaper," explains McKenzie. "Then they build private streets, which are very narrow and not as deep, so they're cheaper streets. So they need a lot of repairs."

But who will take care of the infrastructure and the roads? Not the city, of course, because these are private communities. Instead, the HOA, run by volunteer homeowners with help from profession property managers and lawyers, must levy assessments from homeowners to pay for the cost of maintaining the property. With such an arrangement, developers get the best of both worlds: an escape from city planning ordinances that restrict their profits, and an entity that inherits the results of their cost cutting.

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With these conditions, why do Americans keep flocking to CIDs? In part, it's because if you want a new home, there is little else to choose from. But it's also because these developments offer a taste of the American dream that's ideal for a fraction of the cost of a discrete single-family home. "Instead of everyone getting a big yard with a swimming pool, developers figured out how to do the same thing," explains McKenzie. "They build amenity-rich developments with golf courses, swimming pools, game rooms -- all exclusively for the homeowners."

These features, says McKenzie, offer the promise of class and racial exclusivity without breaking antidiscriminatory fair-housing laws.

"They can still sell exclusion without being formally racially exclusive," he says. "It's become an important marketing feature for a very lucrative form of housing."

The problems in these private communities tend to erupt a few years down the line, though, after the developers have sold off the last of the houses and the HOA has taken over. Once the statute of limitations for suing the developer -- usually one to three years -- has expired, the association is on its own. Suddenly, roofs begin to leak, streets break down and the HOA realizes it needs to begin serious repairs.

"When the developers leave, the incoming association directors often find that they're 'underreserved'," says McKenzie. "The developers have almost always set the fees too low -- they set them low to sell homes -- so the HOA begins raising fees. And sometimes the assessments are huge -- $600 a month."

At other times, an expense is so big and so urgent that the HOA must levy a "special assessment" to pay for a new roof or a rotting deck. "So the board votes for a special assessment of, say, $10,000 [per homeowner]. And if you can't pay, they'll slap a lien on your home. The HOA has a fiduciary duty to maintain the property."

Why would cities allow developers to circumvent planning ordinances and create communities that may not be up to the task of maintaining their own infrastructure?

"The cities get something for nothing," says McKenzie. "They still get the property taxes without building or maintaining the infrastructure, the pipes, the streets, the parks. Essentially, it's a form of double taxation." Although New Jersey recently passed a law compelling cities to provide homeowners in private communities with a snow-removal and leaf-removal rebate (since they don't use those city services), most states have been slow to enact legislation acknowledging the double-taxation issue.

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The HOA has every right to keep consistant with zoning laws.

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Stripping away rights is forbidden by law.

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Business / News
HOA covenant takes aim at resident’s weapons business
Wednesday, May 26, 2010 | James Rincon

A Pflugerville homeowners association approved an amendment that has at least one resident up in arms.

Andrew Clements has lived in Pflugerville for seven years operating an at-home business within the structured serenity of the Falcon Pointe planned community. Earlier this month Clements took steps to start a second business from his home selling guns online, but the HOA won’t let him pull the trigger.

“The HOA went out of their way to file an extra covenant to say I can’t have that type of business, but any other business is OK,” Clements said. “They don’t have a problem with all the Avon, Advocare, insurance people, but they’re going to be bias to a guy because they don’t like firearms.”

The Falcon Pointe board, managed by Realmanage property management company, amended its declaration of protective covenants by adding Section 12.24.2, which states:

“The business activity does not consist of the sale of fireworks, incendiary devices or material, firearm ammunition, or firearms, including but not limited to firearms of a size which may be concealed on the person, shotguns, rifles and semi-automatic weapons.”

Clements said the HOA’s actions came after he filed applications with all necessary local, state and federal regulatory bodies, and was waiting on approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives.

And avid hunter and gun collector, Clements said it wasn’t until he asked ATF officials about what additional requirements exist to sell National Firearms Act firearms that the HOA became gun-shy.

“I asked the ATF guy what if I want to deal in things like machine guns, short barrels, suppressers for the police and the sheriffs, because they have it for the S.W.A.T. team,” Clements said. “I only applied for normal license. I never filed paperwork about NFA weapons.”

The HOA board approved its amendment May 13, shortly after Clements’ NFA inquiry.

“Number one, it’s discriminatory, number two it’s unconstitutional in my opinion,” Clements said.

Falcon Pointe issued a statement standing by its action.

“Falcon Pointe Community Association, Inc. is the homeowners association for the Falcon Pointe community in Pflugerville, Texas. The Association is committed to the safety and well-being of the residents within Falcon Pointe and to preserving home values and quality community living within the neighborhood. Recently, the Association enacted a prohibition against operating a home based firearms sales business. The Association made such decision in the best interest of the residents in the neighborhood and the entire Falcon Pointe community. The Association stands by its decision and will continue to uphold its commitment to serving the needs and interests of the residents within Falcon Pointe.”

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