Flags are a tough issue for any association looking to promote a tidy, unified curb line. Flags tend to make homes stand out from one another, and some cross the neighborhood style-guide into gaudiness or are so large that they overwhelm the rest of the landscaping. But where do you draw the line between a modestly displayed banner or flag and something actionable? How, and in fact, what is legally enforceable?
This article seeks to answer these questions for board members who are looking for a way to control flag use while also leaving residents with reasonable freedom to express their allegiances and enthusiasm for special events.
1) Know the Federal and State Laws
First of all, there are laws addressing how much an association can regulate flags. In 2005, the federal government passed the "Freedom to Display the American Flag Act of 2005," defining that associations could not stop residents from displaying the stars and stripes. But you can regulate how the flag is displayed and what size it can be based on the safety and codes of the neighborhood.
Individual states also have their own flag-related laws. Many define certain flags like the state flag and military flags that must also be permitted along the same lines as the US flag. The flags must be allowed, but the manner of display can be regulated.
Know the laws that govern your state and neighborhood to know what you are legally allowed to enforce before starting to build your flag regulation policies.
2) Have a Policy Written About Flags
Next, your CC&Rs or By-Laws must actually have a clause relating to flags that defines your power. In most cases, an argument that a flag is simply unattractive will not fly (please pardon the pun.)
You will need to have an established policy that can be referenced by resident members so that they can willfully obey the regulations and so that you have grounds to act. Without a written policy, you have no grounds to act.
3) Focus on Community Safety
Next, your greatest freedom in enforcing flag regulations lies in community safety. You are allowed to limit flags on unsafe flag poles, flags that fly over the public sidewalk, and flags that are so large that whipping in the wind can cause damage. If your policies are written correctly, you may also be able to regulate flags that block a neighbor's view, usually requiring them to be both large and very high up.
Writing your policies mostly with community safety in mind will give you much stronger grounds for selective regulation, grounds that most homeowners will agree to and may try to conform to before the flag can become an issue.
4) Consider Rules on Flag Decorum and Timing
Some associations allow non-protected flags like holiday flags and sports team flags, but only when they are seasonally appropriate. For example, you might allow pumpkin flags, but only during the month of October and perhaps a week into November. Or you might allow sports team flags, but only for the week surrounding a big game.
You may choose to allow very small flags that do not disrupt the neighborhood decorum, like garden flags, as long as they are aesthetic and few in number.
5) Provide Alternative Display Options
Any time you are making a prohibitive policy, it's a good idea to open up an alternative for owner-members who really want to do something. For example, you might suggest that people who are asked to take down large flags hang those flags as curtains or secure them as a sunshade for their porch instead. This prevents the whipping and sight-blocking of an upright flag while allowing them to show their colors, whatever those colors might be.
While it is not always possible, compromises and alternatives make homeowners feel that you are on their side and not simply stamping out their fun or displayed loyalties.
6) Make Sure Flag Rules are Enforced Evenly
This is very important: No matter what your flag policies are, make sure they are enforced absolutely evenly across all circumstances. If you plan to come down hard on flags, there are no exceptions for especially attractive or specific cultural flags. Stick to your rules as written, or provide the same kind of leniency across the board.
Associations can get in some of the worst trouble for showing seemingly discriminatory policy enforcement, and flags are a touchy subject because they so often relate to cultural identity.
7) Have a Flyer or Pamphlet Read to Inform Residents
Finally, make sure your residents are informed about the flag policies. Everyone is saved a fight and a headache when residents can conform to the flag policies when they choose and initially mount their flags rather than receiving a violation notice later on. Include it in your new-resident orientation.
Pass out annual or twice-annual flyers. And have a pamphlet or flyer ready to hand to homeowners when you must let them know that their actions are violations or borderline violations. This will allow residents to make their plans according to the rules rather than facing disappointment or frustration.