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Welcome to the neighborhood: Now clam up

By The Associated Press
07.14.03

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
This soaring 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 pounds.

But those are extremes, said Robert Browning, a national board member of the Community Associations Institute, which helps associations observe professional standards.

"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 situations."

Lawmakers consider association-related bills
State legislatures 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 disruption.

    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 Durston's flag.

    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.

  • Related

    Vietnam veteran's neighborhood dispute prompts flag-flying bill

    Measure would limit ability of homeowners associations to restrict flagpoles, flag displays. 02.22.00

    Michigan appeals panel blesses religious message on couple's house
    Attorney says homeowners' association, which had won in lower court, won't back down on trying to force removal of 'Jesus is King.' 11.27.03

    Arizona bill aims to make homeowners groups more open
    Measure would require association boards to give members broader access to meetings, financial records. 01.17.04

    Apartment dweller, managers clash over flag display
    Retirement community board says father-in-law of Supreme Court Justice Clarence Thomas can't fly flag on holidays. 06.06.04

    Bill to make flying U.S. flag always legal loses steam
    Tennessee attorney general says measure would interfere with neighborhood-association covenants forbidding flag displays. 05.11.05

    N.J. homeowners groups must recognize residents' free speech
    State appeals panel overturns lower court ruling, says residents' 'rights to engage in expressive exercises … must take precedence over the [association’s] private property interests.' 02.08.06

    New Fla. town could be governed by Catholic principles
    If pizza magnate has his way, Ave Maria will ban abortion, pornography, birth control; civil libertarians call plan unconstitutional. 03.02.06

    Illinois assures condo owners right to religious displays
    Governor's office says law, to take effect next January, was prompted by cases in which co-op boards, condo associations attempted to ban religious symbols in hallways. 04.18.06

    President signs bill freeing homeowners to fly U.S. flag
    New law prohibits condo, homeowners groups from preventing residents from displaying Stars and Stripes on their property. 07.25.06

    N.J. high court hears dispute over homeowner rules
    Plaintiffs object to restrictions on political yard signs, high fees for use of association's community room, and lack of voice in community newspaper. 01.05.07

    Conn. condo association orders military mom to remove U.S. flag
    Officials have given Teresa Richard until Labor Day to remove display or face fine, but she has refused, saying flag is link to son serving in Afghanistan. 02.08.07

    Resident tangles with homeowners' group over upside-down flag
    Denver-area neighborhood association notified Beth Hammer that U.S. flag display violated its 'patriotic and political expression policy.' 07.13.07

    Homeowners' group relents, allows resident's upside-down flag
    Colorado neighborhood says it won't pursue enforcement because financial costs 'outweigh any harmful impact this violation may have.' 07.16.07

    N.J. high court: Homeowners must abide by association rules
    Residents forfeit certain freedoms of speech — such as the right to post political yard signs — when they live in developments that bar such expression. 07.27.07

    Political yard signs

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