GOLD RIVER, Calif. — As the war in Iraq drew closer, emergency room doctor
and Vietnam veteran Bill Durston protested by taking down his American flag and
raising a United Nations flag.
Citing its rules, his neighborhood homeowners association told him to take it
down. Citing the Constitution, Durston refused.
The flag remains, as does the dispute between Durston and the association.
It's one of many in the growing conflict between a fast-growing way of living —
inside a homeowners association — and traditions of liberty and free speech.
In a country founded on private-property rights, homeowners associations
increasingly dictate the nation's home colors, landscaping, pet sizes and
placement of satellite dishes. They also restrict many forms of political
expression Americans take for granted. Generally, the First Amendment applies
only to actions taken by government bodies — not to privately
owned communities, where residents often sign contracts agreeing to abide
by various rules and restrictions.
Experts call this still-accelerating trend one of the most stunning
transformations in how Americans live, rent and buy homes — an estimated 50
million people live in homeowners associations.
Especially prevalent in the Sunbelt, homeowners associations — with
corporate-style rules that limit traditional town-hall democracy and keep closed
financial records — govern 80% of the nation's new housing and
neighborhoods, a trade group says. A style of life originally designed for
the wealthy few has exploded during the last decade into a mass phenomenon, with
249,000 homeowners associations reported nationally, and up to 8,000 new ones
created every year.
This year, bills are moving through the California Legislature to override
association bans on political signs and give residents rights to see how their
dues are spent. Nearly one-fourth of the state's 35 million residents live in
its 36,214 privately governed neighborhoods, reports the Congress of California
Seniors and the Oakland accounting firm Levy and Co.
Nationally, an estimated 1.25 million Americans serve on homeowner
association boards, according to the Virginia-based Community Associations
Institute. By contrast, the United States has approximately 200,000 city council
members, said the National League of Cities.
Maintaining property values, predicting behavior
growth of private government fits America's mobile society, where many consider
property values and a quick home sale more important than small individual
liberties, said Robert Lang, author of Edgeless Cities and director of
Virginia Tech's Metropolitan Institute.
"This is a perfect mechanism for maintaining your house values and predicting
peoples' behaviors," Lang said. Homeowners increasingly fear "the neighbor from
hell" and crave a uniformity that assures neighbors will mow their lawns, won't
paint the house dayglo yellow or put a car on blocks in the driveway.
"The total brake on that is the homeowners association," he said.
Experts say the movement is also driven by revenue-strapped city halls that
love neighborhoods that build and maintain their own streets and parks — while
providing a new pool of property taxes for city streets elsewhere. Developers
are equally fond, saying private communities put more people
comfortably on less space and let them share amenities such as pools and tennis
courts they couldn't afford individually. Indeed, growth-management activists
say association-governed neighborhoods have become the nation's best examples of
efficient land use.
But the phenomenon has spun off lampoon-worthy side effects. During
California's energy crisis two years ago, "Doonesbury" cartoons mocked
association bans on outdoor clotheslines. The television comedy "Seinfeld"
skewered Florida condominium politics with episodes about a board president's
impeachment after his son bought him a Cadillac. During last summer's drought in
Colorado, newspapers criticized association rules requiring green lawns.
In his 1994 book, Privatopia, about the rise of homeowners
associations, University of Illinois political science professor Evan McKenzie
cited a resident forced to leave when he married a woman three years younger
than the neighborhood's minimum age.
Other associations have banned an Army veteran from flying a U.S. flag on
Flag Day and have taken a woman to court because her dog weighed more than 30
But those are extremes, said Robert Browning, a national board member of the
Community Associations Institute, which helps associations observe professional
"Unfortunately, there are millions of people living in these communities you
never hear about," Browning said. "It's just that once you start talking life,
country, liberty, property — and you get one voice with a sound bite — you make
a lot of noise that these are dysfunctional. But they're not."
While McKenzie agrees that most associations don't have these problems, the
sheer number of associations can lead to some "authoritarian, oppressive
Lawmakers consider association-related bills
have begun taking steps to curb some excesses.
In Arizona, lawmakers responded to the practice of boards meeting
outside the state — an attempt to keep members from voting — by passing a bill
requiring those gatherings to be held in Arizona.
Update: In 2004, the Arizona State Legislature amended existing
legislation to protect homeowners’ and condominium residents’ right to fly
flags. The revised statues (33-1261 and 33-1808) allow for residents to fly
flags that are consistent in size with dimensions noted in the federal flag code
(P.L. 94-344; 90 Stat. 810; 4 U.S. Code sections 4-10). Arizona homeowners’
associations may not prohibit the installation of a flagpole, but may dictate
its height and placement.
The revised statute 33-1808, which concerns homeowners in planned
communities, also secured the right to post political signs. Signs may be
displayed unless regulated by the association. All sign prohibitions must be
consistent with and not exceed restrictions in local sign ordinances. Political
signs may never be prohibited 45 days before or 7 days after an election.
California. Update: State lawmakers, trying to defuse
incidents like Durston's U.N. flag flap, passed a measure that was signed Sept.
12, 2003, by now-former California Gov. Gray Davis. The bill, AB 1525, permits
residents of common-interest developments (neighborhoods, planned communities,
apartments, et al.) to display signs and flags. The bill prohibits associations
from forbidding such displays and their placement unless they are found to be
hazardous to community health and safety, or in violation of local, state, or
federal codes. An association may stipulate the size or material with which a
display is made, but such regulations must be consistent with local ordinances.
Browning accuses California legislators of "significant micromanagement."
People who buy into association-governed neighborhoods for uniformity expect
sign controls, he said, while those who want financial records are often seeking
Such disagreements reveal the fine line between uniformity and one-at-a-time
exceptions that can lead to dayglo-yellow houses and 14-foot flagpoles. Boards
pressured to overlook violations — such as a U.N. flag — can also be sued for
not enforcing rules.
"The rules are established to benefit and maintain the value of a property,"
said William Calvo, chairman of the Gold River rules committee dealing with
It's fine for Durston to oppose President Bush's policies, Calvo said, but
that's not why the board got involved.
"But where do you stop?" he asks. "People might say we have only five colors
of homes. But at the same time, homes sell quickly here and keep their values —
and people have chosen to do that."
Ohio. Update: The state Legislature passed a law in 2005 that
allows all residents to display the U.S. flag if the display is within the
bounds of local, state, or federal ordinances. House Bill 539 additionally
forbids any regulation of flagpoles — as to placement or size — if the poles are
used to fly the American flag and don't exceed the height allowed by local,
state or federal codes.