Out of the shadow government

Nine months ago, the Cave family was waging an uphill battle on many fronts for a right most of us take for granted: to get home.

Karon Cave and her husband, John, live year-round in a house they designed and built themselves in a development off I-80 near Kingvale that is governed by the Pla-Vada Community Association. One of some 34,000 common-interest development associations in California, the PVCA’s board of directors wields extraordinary powers over the Caves and 200 or so other dues-paying members.

The PVCA board is an example of what experts call private or “shadow” governments, bodies that have assumed their powers largely in the absence of constitutional checks and balances that apply to traditional local governments. Marjorie Murray, a spokeswoman for the Sacramento-based Bill of Rights Coalition, which has supported the Caves, said, “These shadow governments can create their own laws, levy taxes (in the form of membership dues) to enforce them and adjudicate complaints.” Or, as the Caves have discovered, such governments can choose to ignore complaints.

The Pla-Vada Woodlands subdivision largely is populated part time by outdoor winter-sports enthusiasts who enjoy snowmobiling across the only access road that leads to the Cave home. The Caves, however, live there year-round, and gaining access to their home via the road is of prime importance to them.

“All I want is to be able to drive my car down the road leading to my home, turn up my driveway and park on my property,” said Cave. Her simple wish was denied by the PVCA board (see “Shadow Local Governments”; SN&R; April 4, 2002). Because of a disabling work-related spinal injury, Cave can walk only with a cane. However, the PVCA board not only formally refused to plow her street, but also levied a $500 fine each time her husband and sons took the initiative to plow the street themselves.

It snows a lot in the section of the Sierra Nevada where the Caves live; the fines soon amounted to more than $50,000. “It was either be fined, or I would have been forced to walk a half-mile from the nearest cleared parking lot through deep snow to my home,” said Cave. She has slipped and slid her way home along this route several times, which has aggravated her injury. She takes daily doses of morphine for the chronic pain her disability causes her.

For its part, the PVCA board has maintained that the subdivision is not meant to be lived in year-round. “It’s really just a place to get away for the weekend—go snowmobiling, snowboarding and what not,” said Roger Hatfield, a PVCA board member. Board members believe that by plowing the Caves’ road, the subdivision’s quiet ambience will be “ruined,” said Catherine Corfee, an attorney hired by the PVCA board to represent it in several legal proceedings initiated by the Cave family.

Last spring, Cave made several journeys from her mountain home high in the Sierra Nevada to Sacramento so she could testify about her battles with the PVCA before the California Law Revision Commission, which tries to discover defects and anachronisms in laws and recommend legislation to make reforms. In Cave’s case, the law in question is the Davis-Stirling Act (one co-author of which presently serves as California’s governor), which mandates the scope of common-interest developments’ private governmental powers.

Murray approached the Congress of California Seniors, a lobbying organization that works on behalf of several hundred grassroots groups and is composed of 650,000 senior and disabled citizens. In turn, CCS brought Cave’s story to the attention of Assemblywoman Christine Kehoe, D-San Diego. As a result, Kehoe inserted the following language into Assembly Bill 2289, then being debated: “An association may not deny an owner or occupant physical access to his or her separate interest.” In other words, each time the PVCA board fined the Caves for plowing the street leading to their home, the board would be breaking the law. Governor Gray Davis signed AB 2289, and it became law several weeks ago, on January 3. William Powers, legislative director of CCS, said, “The plight of Karon Cave was the direct cause of this provision.” Kehoe added, “What good is a person’s castle if he or she—able-bodied or disabled—can’t get to it?”

Up until now, Cave’s lonely battle with the PVCA has been predicated on her disability. However, now that AB 2289 has been signed into law, the potential number of dues-paying PVCA homeowners who can seek redress if denied access to their homes has increased. Already, several able-bodied residents who live in Cave’s subdivision have come forward and petitioned the PVCA board of directors to request that their streets be plowed regularly as well. According to Michele Magar, Cave’s attorney, this group of PVCA homeowners is considering taking the common-interest development’s board to court under the new law. “With passage of AB 2289, the ability of high-handed CID homeowners associations to arbitrarily disrupt the lives of dues-paying homeowners simply seeking access to their property is much more limited,” said Magar. “Of course, we’ll have to wait and see how it plays out in the courts.”

The California Law Revision Commission noted in its tentative December 2002 recommendations concerning Cave’s case that most common-interest developments’ boards of directors are made up of volunteers. “Faced with the complexity of common-interest development law,” the CLRC stated, “many of these volunteers make mistakes and violate procedures for conducting hearings … and enforcing parking.” Perhaps the most egregious mistake the PVCA board made in dealing with Cave was denying her the right to face her accusers; the board decided in closed session to fine her for attempting to clear her street.

Cave is pressing her case on another front as well. She asked the California Department of Fair Employment and Housing to intervene in her case. The DFEH charged the PVCA board with housing discrimination because of Cave’s disabilities. Through December 2002, Cave faithfully attended the commission hearings. This attendance required near-heroic efforts on her part. “DFEH would not pay for my lodging in Sacramento. Therefore, I had to commute up and down the mountains each day in order to attend,” Cave said. In the third week of December, she was subpoenaed by Corfee, the PVCA board’s attorney, to testify on December 19. It just so happened that, from December 16 on, most weather reporters on television were predicting a massive snowstorm would hit on December 19. When it did, Cave was snowed in. By using ingenious snow-packing technology—dragging a weighted wooden block behind the family pickup truck—Cave’s husband and sons had managed to keep up with the blizzard and kept the access street navigable. But the storm was so severe that power lines were knocked out, and PG&E trucks had to come in. They broke up the carefully packed surface and effectively stranded Cave.

A DFEH hearing officer, Mark Woo-Sam, found Cave in contempt. “He was furious,” Magar said. However, after reading a statement Cave wrote about why she couldn’t appear and detailing the extent of her injuries, the hearing officer relented. “Basically, I think they were trying to play a cat-and-mouse game to distract attention from the matter at hand,” said Magar. “Incredibly, after this incident, Pla-Vada told us it would no longer fine Karon’s family for plowing their road, which they pay $800 a year in dues to get plowed anyway. I felt like telling them, ‘Thanks for not imposing illegal fines anymore!’ ” Corfee did not return calls asking for comment by press time.

The fact that a conflict about plowing a rural road has reached the courtroom and the Legislature is a measure of the chaos resulting from the privatization of government in homeowners associations. Because such associations have so little external oversight, conflicts between homeowners and their governing associations sometimes are blown out of proportion. Though passage of AB 2289 is a big step in the right direction as far as protecting the rights of homeowners, said Magar, “We need to be more vigilant.” The California Law Revision Commission agrees and has tentatively recommended that “every homeowners association should be required to offer its residents a simple, informal and cost-free way to have their concerns addressed.”