By Deborah Goonan, Independent American Communities
A Community Development District in The Villages is enforcing deed restrictions, demanding that homeowners tear out driveway extensions, or face steep monetary fines.
In my opinion, this is one of the most stupid and petty architectural covenants ever.
But, even worse, in this case, it’s not an HOA enforcing architectural standards.
Instead, the Community Development District (CDD) that governs Hallandale Villas is enforcing the CC&Rs. The Villas are located in The Villages in Florida.
“The rules are the rules” mindset moves from private HOA to “public” Community Development District (CDD), thanks to Florida Statute 190.
Rule forbids widening of driveways
Several homeowners were recently warned by the Supervisors of CDD 8: tear out your driveway extensions, or face steep fines of $150, plus $50 per day until the property is in compliance with architectural standards.
In this case, the “extensions” are concrete borders, about a foot or two wide, running along each side of the driveway.
As you can see from the photos in the Villages-News article, the developer of Hallandale Villas apparently cut corners on orignal construction.
You see, the driveways are exactly as wide as the garage doors. Unfortunately, as built, the driveways are too narrow.
Homeowners complain that there’s barely enough hard surface for driver and passengers to get in and out of a vehicle. So they end up stepping on their manicured lawn or shrubbery borders.
For anyone with less than sure footing — a common occurrence in a 55+ community — the too skimpy driveway almost ensures a twisted ankles or nasty falls.
That’s the reason homeowners decided to extend the width of their driveways.
The homeowners explained that they hired a contractor to pour concrete along each side of the driveway. The concrete extension provide a firm landing pad when getting in and out of their vehicles.
And according to reports, “17 percent of the 88 homes” in Hallandale Villas have modified driveways in a similar fashion.
But this common sense solution to the developer’s poor design is against the rules at Hallandale Villas.
Patio villa owners face prospect of ripping up out-of-compliance driveways
By Meta Minton – October 19, 2018
Three Villages homeowners will have to rip up their driveways or face daily fines after a trio of public hearings Friday before a standing-room-only crowd in the boardroom at the District Office.
Three anonymous complaints were received on Aug. 22 about the three driveways in the Hallandale Villas found to be out of compliance for being improperly widened.
Harold and June Huff paid a contractor to put extensions on both sides of their driveway.
“I did it for safety purposes,” said 85-year-old Harold Huff, in an attempt to plead his case before the Community Development District 8 Board of Supervisors.
June Huff had surgery on her shoulder in January and had trouble getting in and out of the car.
Harold Huff said he had the driveway extended so she would have “concrete to step on” when she got out of the car.
The three homes were found to be in violation and the homeowners were given 30 days to bring their homes into compliance. If not, the homeowners will face an immediate $150 fine and then a daily $50 fine until the driveways are brought into compliance.
However, if the homeowners are showing a “good faith effort” at trying to come into compliance, the fines could be delayed. The also could get an expedited hearing before the Architectural Review Committee for plans they might submit to attempt to bring their driveways into compliance.
The District enforces deed restrictions (CC&Rs)
But here’s the kicker.
In this case, the CCD is enforcing the Covenants, Conditions, & Resurrections (CC&Rs), not an HOA.
For readers who may be unfamiliar with the term, a CDD is a special tax district.
It is, essentially, a public unit of government, established by a private developer, for the purposes of managing and maintaining a planned community.
Because CDDs begin with real estate developers, who officially control district boards for the first 7 -1 0 years, they aren’t entirely public governments.
A CDD is a murky sort of public-private partnership governing common interests communities.
Quite often, an HOA or POA (property owners’ association) coexists with a CDD, mostly for the purposes of enforcing CC&Rs and architectural controls.
But in the state of Florida, Statute 190 authorizes CDDs to take over enforcement of restrictions and rules, giving a CDD the power to…
…adopt rules necessary for the district to enforce certain deed restrictions pertaining to the use and operation of real property within the district and outside the district pursuant to an interlocal agreement under chapter 163 if within another district or, if not within another district, with the consent of the county or municipality in which the deed restriction enforcement is proposed to occur. For the purpose of this subsection, the term “deed restrictions” means those covenants, conditions, restrictions, compliance mechanisms, and enforcement remedies contained in any applicable declarations of covenants and restrictions that govern the use and operation of real property and, for which covenants, conditions, and restrictions, there is no homeowners’ association or property owner’s association having respective enforcement powers unless, with respect to a homeowners’ association whose board is under member control, the association and the district agree in writing to enforcement by the district.
But, that begs the question: When Community Development Districts enforce deed restrictions, are they exercising unconstitutional powers?
When it comes to enforcement of CC&Rs by a public entity rather than a private entity, aren’t property owners entitled to a higher level of accountability from their CDD?
The reader may wonder, since CC&Rs in the The Villages serve a similar purpose to local ordinances and codes, why can’t homeowners simply apply for a variance?
The problem is that the CDD is not enforcing ordinances and codes, it’s tasked with enforcing a private contract (the CC&Rs) that was written by and for a private developer’s benefit.
Since when is an executive branch of U.S. local government — that’s essentially what a CDD is — legally empowered to enforce the terms of a private contract, especially a one-sided contract that homeowners had no part in creating?
Unlike a homeowner’s or condominium association, property owners are not “members” of a CDD. They are constituents.
Shouldn’t the CDD’s role in enforcing CC&Rs be limited to initiating a complaint in the judicial branch of government in the state of Florida?
What about Constitutional rights?
To take it one step further, shouldn’t the CDD, since it is real government, be 100% subject to constitutional constraints, in terms of its enforcement powers over private property rights?
The lines are truly blurred. How much authority should Americans be willing to hand over to their local government?
It’s bad enough that more than 60 million residents are over-regulated by private association-governed communities.
The clever attorneys that spawned the HOA scheme argue that it’s a constitutional right to agree to private contracts, including CC&Rs.
But…where in the U.S. Constitution is it written that residents of America may “choose” to own property and live in communities that are not subject to equal protection of their basic rights?
The legal theory that all HOA contracts are sacred is merely the opinion of an elite group of influential community association attorneys and some like-minded judges.
No public interest
Furthermore, does limiting one’s property rights based upon place of residence serve any public interest?
In fact, it’s easy to argue that the erosion of private property rights actually undermines personal wealth, freedom, and liberty.
Erosion of rights is not good for Americans.
Are the terms of CC&Rs and architectural controls always reasonable, fair, and constitutional?
No. In fact, it’s often quite the opposite.
And most of these man-made rules serve no meaningful purpose, especially when most residents subject to the rules hate them.
Is a rule against making one’s driveway wide enough to be functional, both reasonable and constitutional?
Of course not. So why must it be strictly enforced No Matter What?
Too much power
Now, taking it one step further, is it constitutional to empower private HOA governments or, worse yet, public CDD governments with relatively unchecked authority to enforce CC&Rs and architectural controls?
Even if terms of the contract itself were constitutional, the act of enforcing it does not conform to constitutional principles.
For example, residents of common interest communities rarely have the right to speak freely and to express their grievances without fear of retaliation.
Likwise, a mere “opportunity to be heard” is not actual due process. Where are the disinterested parties hearing arguments from both homeowners and their HOA or CDD?
For residents governed by CDDs or HOAs, there must be access to a balanced and fair judicial process.
Too often, private community hearings amount to kangaroo court, where the neighborhood dictators can be too quick to impose monetary fines.
Even if those fines are for deed restrictions that make no sense, and serve no valid purpose.