Shadow local governments

T>he row of boulders jutted from the base of a 12-foot-high wall of snow blocking Conifer Drive, the Caves’ only road home. Catching sight of this berm on his way home from school, Andy Cave wasn’t surprised.

As in the myth of Sisyphus, the boulders and snow had fallen back into place many times after Andy and his dad had cleared the road to access their home. Unlike Sisyphus, the Caves were not contending with the arbitrary acts of Greek gods. But the Pla-Vada Community Association’s actions had sometimes seemed, during its years of conflict with the Caves over clearing the road, of mythic proportions.

Soon before moving into the Pla-Vada Woodlands subdivision, high in the Sierra snow country near Soda Springs, Andy’s mom, Karon, had suffered a disabling back injury while working as a medical assistant. The Caves foresaw no problem with moving. Though not able to work, Karon was still able to drive.

They bought a Pla-Vada lot and her carpenter husband, John, began building their four-bedroom house in 1998. Karon says, “We would never have moved into Pla-Vada if we thought there would have been a problem with using Conifer Drive, the only access road.” The Caves assumed part of the $800 per year dues they paid to the homeowners association would go toward keeping all the subdivision roads plowed. They saw nothing to the contrary in writing.

However, the Caves learned soon after the first snowfall that winter that their $800 dues would not be used for plowing. Rather, the money went toward building the 12-foot wall of snow and boulders blocking Conifer Drive. According to Karon Cave, her husband learned during an informal conversation with their neighbors that most Pla-Vada residents and elected board members only lived in their homes part-time.

“These are some serious snowmobilers,” Karon Cave said her husband told her. “They feel having a plowed road anywhere near their snowmobile trails would seriously cramp their style.”

The Caves, however, wanted to live in their home year-round and, Karon Cave says, “Conifer Drive is our lifeline.” After shopping for groceries or visiting her doctor during the winter, Cave’s only recourse was to park her car in a plowed parking area beside the snow wall and walk a half-mile over slippery snow and ice to get home.

Defiantly, her husband and son would dig through the wall, but their passageway would just get filled in, again and again. After seeing their access blocked many times, Karon Cave began attending the community association board meetings. She supplied board members with documentation of her back injury.

Her physician, Michael Jensen, stated in a letter: “Ms. Cave has multilevel degenerative disc disease of the … spine … [If she] attempts to carry, push or pull objects … [this will] aggravate her condition.” The board members were not moved to change their policy of charging the Cave family to block Conifer Drive.

The long battle began reaching its climax in December. Pla-Vada Office Manager Amy Wright wrote Cave and quoted a 1992 Pla-Vada Community Association Resolution: “ … The [Pla-Vada] Roads Committee will decide what road entrances will be bermed and where closed signs will be posted. No one is to remove the berms or cross over the berms with any vehicle except snowmobiles, ATVs or on foot. A $500.00 fine will be assessed for anyone in violation.”

Cave says this was the first time she saw the 1992 Resolution. Wright’s letter also included notice to appear before the board of directors “ … to explain your non-compliance with the ‘Fine Policy.’ ” Due to a flare-up of her back injury, Cave couldn’t attend. Nonetheless, the board elected to impose the $500 fines every time Cave or members of her family “ … remove[d] the berm … ” or drove along the “closed road.”

With its ability to wield such enormous power over an individual, the Pla-Vada Community Association is a type of what Gerald Frug, professor of local government law at Harvard University, calls “shadow governments.” Including homeowners associations and tenancy in common organizations (TICs, for condominium developments), these quasi-public entities currently govern more than six million California residents.

“The privatization of government in America is the most important thing that’s happening, but we’re not focusing on it,” says Frug. “We haven’t thought of it as government yet.”

Many of these “shadow governments” effectively serve the property owners living in their jurisdictions. Notes city planner Andres Duany in his book Suburban Nation: “Suburban maintenance derives much of its effectiveness from providing management through homeowners’ associations (HOAs). The willingness of tax-averse citizens to pay considerable monthly fees to these associations demonstrates that elective taxation is viable if the revenues are spent in proximity, where residents feel they have some control over the outcome.”

As for the rules, the Community Associations Institute, a lobbying organization for homeowners associations, states on its Web site, “[A homeowners] association is a part of the community of homes it serves and the rules are created to provide the maximum benefit to the community as a whole.” For many homeowners who move to the suburbs out of frustration with the faceless bureaucracy of big city governments, their local homeowners association provides a setting in which they can get problems solved though working directly with their neighbors.

However, as Karon Cave and her family discovered, a homeowners association can wield its power in the absence of constitutional checks and balances.

“It appears that the majority of the [Pla-Vada] board continues to act in their own self-interest without regard to the law. I have been active on the board for over five years and have tried to stop and change these unjust, shady actions. But, I always seem to be in the minority,” dissident Pla-Vada board member Charlene Braga recently wrote.

Dissidence aside, Wright, who is also the Pla-Vada board secretary, wrote in a follow-up letter to Cave dated January 28, 2002: “The roads were officially closed on December 2, 2001. The violation of driving a vehicle on the closed road was … witnessed on December 3, 7, 8, 9, 21, 22, 28, 29 and 30, 2001. Also a calendar was kept of the berm being removed by John Cave at the entrance of Conifer Drive on December 11, 14 and 19, 2001.”

Wright concluded that Cave was to be held accountable for all legal fees and expenses incurred. At this point, all told, Cave has been fined, she says, more than $50,000 for attempting to use Conifer Drive. When asked if the Pla-Vada Community Association would attempt to foreclose on the Cave residence if the Caves do not pay these fines, board member Roger Hatfield stated, “It’s a possibility.”

According to Marjorie Murray, spokeswoman for the Sacramento-based Bill of Rights Coalition, the law is “muddled” as to whether the Pla-Vada board and other homeowners associations can fine or foreclose on residences of people who refuse to pay fines for violation of their rules. The central statute regulating homeowners associations in California is the Davis-Sterling Act, according to which, Murray says, “these ‘shadow governments’ can create their own laws, levy taxes (membership dues) to enforce them and adjudicate complaints.” Or, as with Karon Cave, decide not to listen to complaints.

Davis-Sterling notwithstanding, by passing judgment against Karon Cave while she was not present, the Pla-Vada Community Association also seemed to go against the grain of settled law going back to the Code of Hammurabi (enacted in 1900 B.C.) which states that the accused has the right to confront his or her accusers. A more recent document takes Karon Cave’s side in no uncertain terms in her efforts to petition the Pla-Vada board to fairly consider her complaints: “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.”

These petitioners were the authors of the United States Declaration of Independence and it was the imperious King of England who repeatedly injured them.

The vast majority of homeowners associations and TICs provide a myriad of services with a minimum of chicanery. According to Joel Garreau, a Washington Post writer, “These shadow governments … in their various guises … enforce esthetic standards, provide police protection, build roads, fill potholes, publish newspapers, pump water, clean streets, landscape grounds, pick up garbage, cut grass, rake leaves, remove snow, and provide day care.”

Local city and county governments had traditionally handled some of these functions. But after California voters limited property tax revenues through Proposition 13, the “shadow governments” mushroomed. Strapped city and county governments were only too glad to cede responsibility for and pass maintenance and other costs on to these new governments. Other functions, such as blocking off access roads with walls of snow and boulders, were never contemplated by city or county governments.

Cases like Karon Cave’s are multiplying. Steve Cogswell, assistant director of Sentinel Fair Housing, an Oakland-based nonprofit research facility, says he’s received an increasing number of complaints from homeowners about their local “shadow government.”

“Basically, the way Davis-Sterling is written now, people like Karon Cave have nowhere to go for redress of their complaints,” says Cogswell.

So nonprofit agencies, informal advocacy groups and individual homeowners have deluged the California Legislature to clarify the Davis-Sterling Act (the “Davis,” by the way, is Gray Davis from his legislative days). Cave testified before the California Law Revision Commission on March 15, telling commissioners, “The laws of the Davis-Sterling Act do not protect individual civil rights … [and] do not require the homeowner association boards to follow the same laws and procedures as any other public and/or governmental agency.”

Things appear to be coming to a head. Fines and foreclosures initiated by “shadow governments” continue to mount. In Sacramento County alone during 2001, Cogswell estimates homeowners associations filed about 270 foreclosure notices with themselves listed as “beneficiaries.” While the California Law Revision Commission is considering changes to laws governing homeowners associations, the California Department of Fair Employment and Housing started its own official inquiry into Karon Cave’s specific grievances March 25. A ruling is expected later this year.

As the wheels of these government entities grind on, Karon Cave hopes that ultimately the power of the Pla-Vada Community Association and “shadow governments” in general will be reined in.

“There ought to have been someplace I could have gone to get my case heard fairly. What we need is a Homeowners Bill of Rights. I really wish it hadn’t come to this. I don’t have anything personal against these people [the members of the Pla-Vada board]. I mean, gosh, if they want to go snowmobiling or use their ATVs, there’s acres and acres of woods around our subdivision,” she said with a sigh. “All I want is to be able to drive my car along Conifer Drive all the way home.”