EMHA DRONE POLICY: UNLAWFUL ASSUMPTION OF FEDERAL AUTHORITY
On August 12, 2019, the EMHA Board of Directors met at the Santa Teresa Volunteer Fire Station. Homeowner X attended the meeting, suspecting that drones would be a primary topic.
TL;DR
Download Updated Fact Sheet (2023) on State and Local Regulation of Unmanned Aircraft Systems (UAS)
- 49 U.S. Code ยง 40103 (a) (1) The United States Government has exclusive sovereignty of airspace of the United States.
- The El Mirador Homeowners Association in Santa Teresa, New Mexico, created a drone policy without following proper procedures, rendering it unenforceable.
- UAS (drone) flight regulation by HOA is in violation of federal law. The FAA provides easily obtainable guidance to help governmental and non-governmental entities avoid violating federal law and regulation concerning drone flights.
The policy was likely created in retaliation against a homeowner who asked a neighbor to remove dirt from her driveway expansion that had been dumped in the homeowner's yard. An HOA committee member agreed to help the neighbor retaliate, using his position on the Design Review Committee to create and forward the drone policy to the board, which was voted on two weeks later. Homeowner X filed a petition with the FAA against the HOA's drone policy and threat of fines and punishment, but the petition has languished in federal bureaucracy because the Association has not yet attempted enforcement of its drone policy.
Homeowner associations often act beyond their authority, committing unlawful acts. In this case, the EMHA has assumed the federal authority to regulate the overflight of the subdivision and the air rights of all 94 privately-owned residential properties. These acts violate state and federal law and deprive homeowners of their property rights, including the ability to peacefully enjoy their homes.
Air rights is a legal concept that gives landowners the right to use and develop the airspace above their land. This concept is rooted in English common law, which states that "whoever owns the soil, it is theirs up to the heavens and down to hell." However, the federal government has abrogated private property rights somewhat regarding aviation, so landowners do not have unlimited control over the airspace above their land.
In the 1946 U.S. Supreme Court case U.S. v. Causby, the Court held that landowners own at least as much of the airspace above their land as they can occupy or use in connection with the land. This means that landowners can prevent others from flying over their land at low altitudes, if such flights interfere with the landowner's use of the land.
The Association is required to provide information to members about upcoming votes on new policies, either by conspicuously posting, mailing, or hand-delivering the information. In this case, the Association failed to do so. This suggests that the Association does not typically comply with its own rules or the law.
The topic of drones arose at the meeting, and the homeowner was surprised by the extent of false representations and claims made by the Board of Directors. When a member, or members, of a Board of Directors lies or misrepresents facts, it is generally considered bad faith. EMHA Covenants and Bylaws, as well as New Mexico State law, require all officers, directors, board and committee members to act in good faith at all times. Dealing in bad faith can invalidate protections normally enjoyed by corporate board and committee members, and can also imperil the core principles of the business judgment rule.
The drone policy is poorly drafted, and despite state law requiring records to be maintained of all board and committee acts, EMHA claims to have no records of the Design Review Committee's creation, drafting, or proposal of the policy to the board. The policy seemingly appeared out of thin air, and the board voted on it.
Homeowner X alleges that the EMHA created the drone policy specifically to target his family, effectively making it an HOA writ of attainder. He further asserts that this is the second demonstrable act of his neighbor, Judith Pierce, and the EMHA Design Review Committee colluding to create a hostile environment for him and his family.
Homeowner X filed a petition with the FAA against EMHA's drone policy and threat of fines and punishment. The petition languished in federal bureaucracy for over a year. In February 2021, an FAA official informed Homeowner X that the petition had been forwarded to the appropriate legal counsel's office and would be answered soon. However, the FAA determined that the Association must attempt to enforce the policy before the FAA can take any action.
THE LIKELY ORIGIN OF EMHA DRONE POLICY
EMHA, a nonprofit corporation chartered in New Mexico, must comply with all applicable state and federal laws. This includes following certain procedures when taking certain actions, such as creating new rules. EMHA failed to properly create or enact its drone policy, rendering it unenforceable and in violation of federal law.
The Association's drone policy originated on July 31, 2019, when Judith Pierce became upset after being asked to remove dirt from her driveway expansion that had been dumped in her neighbor's yard. Pierce has little regard for the property rights of others and was eager for an opportunity to retaliate.
On August 1, 2019, Judith Pierce, AKA Ultimate Karen, seeking confrontation entered their neighbor's property at approximately 8:00 PM while the neighbor was taking photographs of their freshly painted residence.
She encounters her neighbor in their backyard and launches into a long, angry, and apparently intoxicated tirade.
After nearly twenty minutes of confrontation, Pierce warns her neighbor that he "will regret" ever meeting her. Unbeknownst to her, he had already begun regretting meeting her before her intoxicated outburst.
After returning to her backyard, where she had been clearly drinking with her husband, El Paso Attorney David Pierce and her in-laws, Judi loudly talked for the rest of their time outside. She even called the Henry Trost of the Design Review Committee to ask for his help in retaliating against her neighbor. Trost apparently agreed to help her, using his position on the Committee to forward a drone policy to the El Mirador Homeowners Association Board of Directors, which was voted on two weeks later.