By Deborah Goonan, Independent American Communities
A federal lawsuit has prompted an investigation of Bay View Association, a seasonal community in Michigan, whose board recently enacted a policy requiring all of its property owners to be practicing Christians, affiliated with a church.
See this AP news release:
Feds investigate Michigan resort community that requires homeowners to be of ‘Christian persuasion’
Details previously posted February 12, 2018
First Amendment, Fair Housing, & Civil Rights: Can MI HOA discriminate on basis of religious affiliation?
By Deborah Goonan, Independent American Communities
The Bay View Association (MI) case is particularly important because the Association possesses many of the same qualities, rights, and governing powers of modern association-governed communities (HOAs). If a federal court recognizes Bay View Association as a government entity, could it open the doors to future legal challenges of the power of Homeowners’ Associations to enforce unconstitutional covenants and restrictions?
It has been 70 years since the U.S. Supreme Court ruled in Shelley vs. Kraemer, that racially restrictive covenants and deed restrictions are unenforceable. The U.S. Constitution was amended decades later, by the Civil Right Acts of 1964 and 1965, as well as the Fair Housing Act of 1968 and the Fair Housing Amendments Act of 1988.
More importantly, the First Amendment of the U.S. Constitution prohibits the establishment of religion by government.
And yet, some homeowners in the historical, 447-home seasonal resort town of Bay View, Michigan, believe they have the right to restrict homeownership to practicing Christians, specifically active members of the United Methodist Church.
Bay View is an incorporated town on the shores of Lake Michigan. It began life in the late 19th century as a Methodist summer camp and Chautauqua, a live entertainment venue that was popular prior to the rise of the motion picture industry.
Bay View is one of the few remaining Chautauqua venues in the U.S., and is listed on the National Register of Historic Places.
During the Victorian era, property owners built cottages upon former camp sites, upon leasehold land. Many of the homes have been passed down to family members over 5 generations. Today the community serves as a vacation resort, with some owners renting their homes to visitors or family members during the summer months.
When Bay View was incorporated as resort town in 1889, the State of Michigan granted considerable governing authority to Bay View Association, currently led by a 10-member board of trustees.
Claims in the lawsuit
A group of homeowners, known as the Bay View Chautauqua Inclusiveness Group, have filed a federal lawsuit against Bay View Association, its board, and its real estate sales and management group.
The Plaintiff (Inclusiveness Group) argues that the Defendant Association possesses police powers of a governing entity, and therefore, restricting homeownership in Bay View to practicing Christians violates the religious establishment clause of the First Amendment of the U.S. Constitution. Additionally, the lawsuit claims violations of the Michigan State Constitution, federal and state Fair Housing and Civil Rights Acts, and the Michigan Non-Profit Corporation Act.
From it early beginnings, the State of Michigan granted a great deal of responsibility and power to Bay View Association.
Bay View must maintain its private roads, storm drainage, private water supply, and its own docks for lake access.
Police powers of the Association include the rights to assess and tax private property, to enforce restrictions and provisions of the Bylaws, to hire a Marshall to enforce traffic laws and rules against various public nuisances, and the power to impose fines or up to 30-days imprisonment at the County jail upon violators of Bay View Association Bylaws.
Bay View’s Bylaws contain many typical HOA restrictions of its time, including rules against loud parties and business or agricultural use of land. But they are also a throwback to the Prohibition Era — restricting access to alcohol and prohibiting gambling activities in the community.
As you read the following article in The Guardian, and the lawsuit filed by the Plaintiffs (see the window at the end of this post), you’ll wonder if there’s really any meaningful difference between “private” association-governed communities and Bay View Association.
You’ll observe that, except for the right to arrest and imprison violators, many modern association-governed communities possess very similar police power and authority to enforce aesthetic and land use restrictions upon private property.
The only difference between Bay View Association and modern-day association-governed common interest communities is the fact that, back in 1889, Michigan government officially delegated government powers to the Association.
Most modern-day HOAs are designated as corporations, but without the official delegation of power or charter from state government.
The Michigan town where only Christians are allowed to buy houses
Bay View is for many an idyllic community – but a lawsuit will test its rule that only practicing Christians can own property
Tucked away in Michigan’s Lower Peninsula, somewhere along the winding roads that hug Great Lakes shores, is an idyllic town named Bay View. For more than a century, generations of “Bay Viewers” have congregated here to share in summer activities.
What started out as a modest camping ground for Methodist families 140 years ago has quietly developed into a stunning vacation spot for people who can afford the upkeep of a second home. Streets named Moss, Fern and Maple are dotted with impeccably maintained century-old gingerbread cottages. Over the horizon, residents can watch lifelong friends sail their boats across the water.
But this paradise is not open to all.
In Bay View, only practicing Christians are allowed to buy houses, or even inherit them.
Prospective homeowners, according to a bylaw introduced in 1947 and strengthened in 1986, are required to produce evidence of their faith by providing among other things a letter from a Christian minister testifying to their active participation in a church.
Last summer, a dozen current and former resident members filed a federal lawsuit against the town, its ruling Bay View Association and a real estate company, claiming the Christian litmus test was illegal and unconstitutional.
Some of the facts presented in the complaint against Bay View Association:
- Home buyers have been turned away on the basis of their religious affiliation.
- Current homeowners are unable to designate their spouses or children as heirs, due to current religious affiliation requirements.
- The Association has attempted to convert to an ecclesiastic (religious) corporation, but that request has been denied by the state of Michigan.
- Nevertheless, Bay View Board of Trustees enacted a requirement that 60% of its members be practicing Methodists, and any amendment to that requirement must be approved by the West Michigan Conference of the United Methodist Church.
- Lots are leased to homeowners, and managed by a for-profit real estate management company. Neither the management company nor the Association makes contributions to the United Methodist Church, and the Management Company pays taxes on it profits.
A national trend?
There appears to be trend with religiously affiliated groups voluntarily self-sorting themselves into association-governed communities. And, as people of similar values congregate, they sometimes seek to exclude those who are not part of their group.
I highlighted two examples in these previous posts:
Read the lawsuit: