EMHA DRONE POLICY, HOA ULTRA VIRES

El Mirador Drone Policy

On August 12, 2019 there was an EMHA Board of Directors meeting at the Santa Teresa Volunteer Fire Station. It was the first meeting attended by Homeowner X who suspected that, among other things, a primary topic of the meeting would be drones.

A common issue with homeowner associations is that of ultra vires, where they commit acts that are beyond their authority or even unlawful. In this case, EMHA has assumed federal authority to regulate overflight of the subdivision by aircraft. They also assumed authority regarding air rights of all 94 residential privately-owned properties existing within the subdivision. These are acts simply beyond the scope of their authority, violating state and federal law, and depriving homeowners of substantial property rights, and a single homeowner of the ability to the peaceful enjoyment of their home.

The concept of air rights is rooted in English common law, based on a legal maxim attributed to the 13th-century jurist Accursius: cujus est solum ejus est usque ad coelum et ad inferos — whoever owns land it is theirs up to the heavens and down to hell. This has become a traditional concept of land ownership, describing a parcel of property as including a horizontal element, starting at the center of the earth and reaching to the periphery of the universe. The federal government has abrogated private property rights somewhat regarding aviation to the extent that the use of the air as a public highway has pre-empted the interests of property owners. There does appear to be a downward limit for regulated airspace that has become dedicated to public use. In a 1946 U.S. Supreme Court case, U.S. v. Causby, 328 U.S. 256 (1946), it was determined that "...the landowner owns at least as much of the space above ground as he can occupy or use in connection with the land."


The Association is supposed to provide information to members when it will be voting on new policies, either by conspicuous posting, mail, hand delivery, etc. They did not in this case, and it is suspected that they typically don't because they do not care about complying with the Association's rules or the law.

As suspected, the topic of drones did arise, but the degree of false representations and claims made was unexpected, at least by this homeowner. When a member, or members, of a Board of Directors lies or otherwise misrepresents facts they are ostensibly dealing with, it is generally considered an act, or acts, of bad faith. EMHA Covenants and Bylaws, as well as New Mexico State law regarding nonprofit corporations require all officers, directors, board and committee members, etc., to deal in good faith at all times. Dealing in bad faith often invalidates protections normally enjoyed by corporate board and committee members. Bad faith also generally imperils the core principles embodied in the business judgment rule.

EMHA Design Review Guidelines Section 2.1.12 Drones, page 1.

EMHA DESIGN REVIEW GUIDELINES SECTION 2.1.12 DRONES, PAGE 1.

EMHA Design Review Guidelines Section 2.1.12 Drones, page 2.

EMHA DESIGN REVIEW GUIDELINES SECTION 2.1.12 DRONES, PAGE 2.

The drone policy itself is poorly written, and despite state law requiring records to be maintained of all acts by Board or Committee, EMHA claims they have no records of the creation, drafting and proposal to Board by the Design Review Committee of the policy. It somehow just materialized out of thin air, and they voted on it.

Homeowner X asserts that EMHA created the drone policy to apply against only one family, literally being an HOA writ of attainder. He asserts that this is a second demonstrable act of his neighbor, Judith Pierce, and the EMHA Design Review Committee, collaborating to create a hostile environment for him and his family.

Despite what certain EMHA Board and Committee members claimed in the August 12 meeting, the likely origin of the drone policy and how it came to be voted on that evening was not due to events occurring in 2016.

Homeowner X filed a petition with the FAA against EMHA over the drone policy, and their threat of fine and punishment. This petition has languished for many months, winding its way through federal bureaucracy for over a year. Finally, in February 2021, the homeowner received a call from an FAA official who provided notice that the petition was now with the appropriate counsel's office and would be answered soon.


THE MOST LIKELY ORIGIN OF EMHA DRONE POLICY

EMHA is a nonprofit corporation chartered in the State of New Mexico. They are required to abide by all laws, state and federal, affecting a nonprofit corporation and a homeowner association. This entails following a number of procedures for doing certain activities, such as creating new rules. EMHA did not properly create or enact their drone policy, and so it is unenforceable. Even worse, it is a violation of federal law.

To understand the true origin of the Association's drone policy, one only needs to go back to July 31, 2019. Judith Pierce was upset about being asked to remove dirt, from her driveway expansion, that had been dumped in their neighbor's yard. Upset is probably an understatement. Apparently, Judith Pierce has little consideration for the property rights of others, and it seemed that she would welcome any opportunity that presented itself to exact her revenge.

Judith Pierce, AKA Ultimate Karen, upset about being asked to remove dirt from her driveway expansion that they dumped in neighbor's yard, July 31, 2019.

JUDITH PIERCE, AKA ULTIMATE KAREN, UPSET ABOUT BEING ASKED TO REMOVE DIRT FROM HER DRIVEWAY EXPANSION THAT THEY DUMPED IN NEIGHBOR'S YARD, JULY 31, 2019.


One day later, August 1, 2019, evidently, presented just such an opportunity. At about 8:00 PM, her neighbor was taking photographs of his freshly painted residence when Judith Pierce, AKA Ultimate Karen, seeking confrontation, entered her neighbor's property.

Judith Pierce, AKA Ultimate Karen, entering her neighbor's yard to confront him over his drone, August 1, 2019.

JUDITH PIERCE, AKA ULTIMATE KAREN, ENTERING HER NEIGHBOR'S YARD TO CONFRONT HIM OVER HIS DRONE, AUGUST 1, 2019.

She finds her neighbor in his backyard, and begins what he perceived as a long, angry alcohol fueled rant.

Judith Pierce, AKA Ultimate Karen, angry and apparently intoxicated, confronting her neighbor over his drone, August 1, 2019.

JUDITH PIERCE, AKA ULTIMATE KAREN, ANGRY AND APPARENTLY INTOXICATED, CONFRONTING HER NEIGHBOR OVER HIS DRONE, AUGUST 1, 2019.

Almost twenty minutes later, Pierce concludes her confrontation with a warning that he "would regret" ever meeting her. Apparently unknown to her, he had already regretted meeting her prior to her long, loud display of alcoholic rage.

Judith Pierce, AKA Ultimate Karen, angry and apparently intoxicated, confronting her neighbor over his drone, August 1, 2019.

JUDITH PIERCE, AKA ULTIMATE KAREN, ANGRY AND APPARENTLY INTOXICATED, CONFRONTING HER NEIGHBOR OVER HIS DRONE, AUGUST 1, 2019.

Judith Pierce, AKA Ultimate Karen, angry and apparently intoxicated, leaving after confronting her neighbor over his drone, August 1, 2019.

JUDITH PIERCE, AKA ULTIMATE KAREN, ANGRY AND APPARENTLY INTOXICATED, LEAVES AFTER CONFRONTING HER NEIGHBOR OVER HIS DRONE, AUGUST 1, 2019.

Judith returned to her backyard, where she had been clearly drinking previously with her husband David, his brother Richard and wife Debra. She loudly talked for the rest of their time outside, even calling Henry Trost to ask for his help in retaliating against her neighbor. Trost apparently agreed to help her, using his position on the EMHA Design Review Committee to formulate and forward to the EMHA Board of Directors the drone policy, which was voted on two weeks later.