A Matter of Principle…or Pettiness?

Most boards keep an eye out for red flags. The board at Brooklyn’s Willoughby Walk Cooperative Apartments, however, kept an eye out for a red, white, and blue flag – Old Glory herself – and in the process invested hours of time and attorney’s fees, got bad press in print and on television, went up against the spirit of a federal law so patriotic it’s got both “Freedom” and “American Flag” in its name, and became a case study in how board actions can create unnecessary problems reaching far beyond the walls of a co-op and in how compromise and creativity can lead to Solomon-like solutions.

What was this quality-of-life point that the board considered so monumental that it fought this expensive fight during a time of rising fuel costs, pressure to begin green initiatives, and an uncertain mortgage market? Keeping decorations off apartment doors – specifically, keeping an American flag off an apartment door. As generations of soldiers who’ve fought for that flag have asked, “Is that the hill you want to die on?”

It all began, explains property manager Ernest Susco of RY Management, when the board “made a decision to maintain the property rules and regulations, which [say that there will be] no decoration of any kind on the doors.” Adds co-op attorney Ezra Goodman of Norris McLaughlin & Marcus, to whom board president Ann Daniels deferred: “You don’t want objects that might offend other people or clutter the place and make it look like a college dormitory.”

Sounds simple enough. But after the Associated Press and other wire services picked up on a New York Post story evocatively titled “Patriot’s Stars Barred,” TV camera crews sought comment at the 16-story, two-building complex at 185 Hall Street and 195 Willoughby Street in the Fort Greene neighborhood. And the board dug in its heels.

The flag is on the apartment door of Vincent J. Romano, an arraignments supervisor in the Brooklyn criminal office of the Legal Aid Society, and his wife, Antoinette, an administrative assistant with Legal Aid in Manhattan. They have lived in the apartment as renters since 1992; Antoinette had bought it in 1988. On September 11, 2001, her cousin, who worked at the insurance firm Marsh & McLennan in the World Trade Center’s north tower, was killed in the terrorist attack.

In response, the grieving Romanos placed the rubberized-magnet flag on their door, vowing to leave it in place until Osama Bin Laden was captured or killed. Indeed, the Romanos say, many of the apartment doors sported American flags in the wake of the horrendous attack. In the nearly seven years since, notes Vincent, “no one raised an objection or indicated anything was a violation of a rule or objectionable or offensive.”

In April, he says, the co-op “had finally moved forward with certain refurbishings that had been planned for a good long time, part of which was repainting the doors.” On April 25, Susco sent a letter to shareholders stating that no door decorations were allowed. The Romanos’ flag remained, however, and on July 17, Susco sent the Romanos a letter ordering the flag removed from the “painted door as this will damage the door,” and further stating that the Romanos would be responsible for “any damage to the door and subsequent cost” of repair.

As Vincent later demonstrated for the TV cameras, the rubberized magnet does no damage to the paint. In fact, even the board’s attorney says the claim about paint damage was not true. “The reason is not that they were worried about the paint,” he concedes. “The key reason is there has been a rule going way back that nothing is to be placed on the doors fronting the public hallways.”

“The rule,” says Vincent, “indicates ‘no public hallway including apartment doors may be decorated without the consent of the board of the directors.’ The rule says the board can give consent, and, by not enforcing it, you’re giving implied consent.” The rule already is enforced selectively, according to Antoinette. “Last Christmas, we had a wreath on our door, and everybody else did, too.”

Both national and state laws protect the citizens’ right to fly the flag. The federal “Freedom to Display the American Flag Act of 2005,” signed into law by President George W. Bush on July 24, 2006, specifically singles out condominium and cooperative associations.

Technically, however, your front door isn’t your front door. “Hallway space belongs to the co-op generally, including the front door,” says a veteran real estate attorney who is not involved with the case. “In a co-op you don’t own; you have possessory-use rights for inside the apartment. In a condo, you have ownership rights, but in virtually all cases you do not own the front door. You have exclusive control of the inside of the front door, but, for example, you can’t eliminate the peephole or replace the front door with a non-fire-rated door.”

Thus, says Goodman, the co-op’s attorney, the federal law “doesn’t apply. It only applies to separate ownership interest, which is not the front door. The language is clear in that it doesn’t apply to common areas or public areas.”

Goodman is correct, but many professionals question the wisdom of proving it. “It’s a terrible issue because it suggests the board is unpatriotic or un-American or perhaps just heavy-handed,” notes attorney Steven Wagner, a partner at Wagner Davis.

Adds attorney Robert J. Shanahan Jr., a partner at Kilcommons Shanahan who has litigated U.S. flag-related cases: “Condo and co-op boards are like town governments. There are rules and regulations, but if there are any grey areas, then it’s a political issue. Strictly legally, the board has the right to make the rules, and that would cover an American flag. But if the American flag isn’t damaging any common areas, you are best to compromise in these situations. Don’t make form-over-substance decisions.”

Goodman claims it is a matter of precedent and principle. “If you allow one person to put up an object that is legitimately important to that person, what do you say to the next person who wants to put something that’s important to that person?”

This gets into large and highly complex constitutional questions. Can a board forbid an observant Jew from placing a mezuzah outside a door, or is that impermissible squelching of religious freedom?

“A board can decide to not enforce a rule,” says attorney Joseph G. Colbert, a partner at Kagan Lubic Lepper Lewis Gold & Colbert, and an adjunct professor at St. John’s University School of Law. “They should change a rule, but sometimes boards don’t and simply decide not to enforce it.”

Adds Shanahan: “If it’s just something the board passed and not a bylaw amendment, then the board, like any political body, can interpret when a rule can be enforced, subject of the approval or disapproval of the residents.”

Being wise means not just laying down blanket rules and insisting they be followed in all cases, all the time, without exception. This particular board, weeks after the unexpected media flurry, seems to have learned that and found a creative solution. “The board decided to grandfather anything that’s been on a door longer than five years,” Susco says.

Lawmaking is often a matter of using your position reasonably. For with great power comes great responsibility and that means knowing when not to enforce a rule.