Co-op/Condo Boards Must Be Flexible on Issues of Flying the U.S. Flag

Take the most recent high-profile flag fight, in Canton, Georgia. More than a year ago, Ron Tripodo, 58, mounted a standing flagpole in his Bridgemill neighborhood, and ever since he's been fighting his HOA, which objected and issued $32,000 in fines, at $25 a day.

In late August, however, a Cherokee County Superior Court judge ruled that the association was behaving arbitrarily and unreasonably, and that the federal Freedom to Display the American Flag Act of 2005 superseded its decisions.

The act says, "A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use."

"Other People Might Do It"

"One of [the HOA's] arguments was, well other people might do it," Tripodo told Atlanta's CBS affiliate. "Well, yeah, that's their American right, absolutely." Indeed, a neighbor of Tripodo's, Richard Lee, had erected a flagpole near his front porch some years ago, but had backed down when the HOA had intimidated him and he did not feel up to a court fight. He told The Atlanta Journal-Constitution that after the court's ruling, he flew a new U.S. flag that came as a gift from Tripodo.

The HOA's attorney, Karen Socia, told the CBS station, "We completely support flying the American flag. But the neighborhood has approved a certain way that it can be displayed. He did not want to comply."

The association had told Tripodo — a former Army reservist whose brother fought in Vietnam and whose uncle died in Korea — that he could fly the flag in his backyard or on a pole bracketed to his house.  The HOA did not explain precisely what it found offensive about an American flag flying on a front lawn.

In any event, boards need to understand applicable law before going off half-cocked. Aside from the federal law, for example, Arizona and Colorado have "homeowner bill of rights" legislation that spells out what HOAs can and cannot do with regard to flying of flags and other forms of protected expression. Arizona statute, for examples, allows residents to fly the American flag, the state flag, flags representing Indian nations and the official flags of the Army, Navy, Air Force, Marines and Coast Guard.

And why not? Men and women in uniform are dying overseas to help protect us, and a board's going to condemn someone from flying a flag to honor that? Why? Deep down, why? Because  unless a board is made up of professional designers, artists and decorators, any aesthetic decisions it might make could reasonably be considered not the final word in aesthetics.

Maybe a Checklist

Dawn Bauman, executive director of National Board of Certification for Community Association Managers (NBC-CAM), suggests boards develop a "checklist" they can review to ensure clarity with homeowners. The checklist may include:

• Does the current rule comply with state, local and federal laws?
• Does the rule fully address the issue? For example, if the rule is related to the display of flags, does it include architectural guidelines for display of the flag and issues related to the flag pole?
• Can the rule be enforced easily and equitably?
• Is the rule acceptable to residents? Rules are developed by neighbors for neighbors and it is important to ensure that the rule is acceptable to the residents.

"While each community and individual situation may have unique details, [residential] managers must recognize that they are dealing with individuals' homes and personal passions," says Robert Felix, a chair of NBC-CAM and the senior vice president of Rossmar & Graham Management.

No one's saying that agreed-upon standards of aesthetics can't prohibit sports-team banners, movie advertising or a private group's flag from flapping in the breeze. If a board keeps the bigger picture in mind, it can save itself a lot of grief, a lot of bad publicity and a lot of unnecessary legal expense.