In a post several months ago, we noted the General Assembly’s adoption of amendments to the Property Owners’ Association Act and the Condominium Act that address associations’ ability to regulate the display of the United States flag. As we reported then, the amended Virginia Code sections (Va. Code § 55-513.1 [POAs] and § 55-79.75:2 [Condos]) follow the language of the federal Freedom to Display the American Flag Act of 2005, signed into law on July 24, 2006. It provides that no association (POA or condominium) shall prohibit an owner from displaying the U.S. flag on his own property (lot or unit) as long as the display conforms to federal law, rule or custom. You can find the official rules governing flag display in Title 4, Chapter 1 at the U.S. House of Representatives’ website at http://uscode.house.gov/uscode-cgi/fastweb.exe?search.
One of the most significant changes effected by these amendments is the new provision that the association now bears the burden of proof to show that its "restrictions as to the size, place, duration, and manner of placement or display" of flags are "necessary to protect a substantial interest" of the association. Some commentators have questioned, however, the practical impact that the change in Virginia law will have on associations’ conduct, given the existence of the federal law that has been in place for almost the past five years.
The issue of what restrictions associations are permitted to place on flags and flag poles has been a hot-button issue for the past several decades, and has been the subject of some well-publicized litigation.
Flag Pole Litigation in Virginia
In Henrico County, Virginia, an association instituted a lawsuit against an owner for his failure to comply with its rules related to flag poles. In Re: The Wyndham Foundation, Inc. v. Oulton, et al., 56 Va. Cir. 217 (Henrico Co., 2001), decided prior to the enactment of the federal law and the recent Virginia law, the property owners’ association filed suit against homeowners who had erected a large flagpole on their lot without obtaining prior design approval, as required by the association’s governing documents.
The association argued that the flag pole did not comply with the association’s regulations regarding the erection of structures. Upon finding that the pole was a "structure" that was indeed regulated by the covenants and restrictions, the court readily concluded that the flag pole had been erected without the required preapproval from the association and, therefore, should be removed.
Recent Litigation in Georgia
Under the new Virginia law, associations’ restrictions on the display of the U.S. flag will be more closely scrutinized than restrictions on structures, the design of which an association has wide latitude to regulate. A recent Georgia case is helpful to cast light on the types of restrictions that may be impermissible. BridgeMill Community Association v. Tripodo, an unreported case decided in the Superior Court of Cherokee County, Georgia in August 2010, examined the interplay between restrictions on flags and flagpoles.
In 2007, Mr. Tripodo erected a 16-foot flagpole in his front lawn in the neighborhood of BridgeMill, a large master planned community in Canton, Georgia (outside Atlanta). The homeowners’ association notified Mr. Tripodo that the pole violated the association’s covenants and that he should have submitted the structure for approval by the neighborhood architectural committee. Mr. Tripodo refused to remove the flagpole or to mitigate its visual effects by, as the association suggested, relocating it to his backyard, and the association began charging him $25.00 per day, for a fine that totaled $32,000 by the time the association filed suit (note that in Virginia, such charges would have been capped at $900). The association sued Mr. Tripodo for the fines as well as for an injunction to order him to remove the flagpole. It argued that the fines and injunction request were based on the pole, not the flag itself, an argument likely stemming from the fact that the federal flag law addresses flags but not supporting structures.
The court did not accept that argument, stating that "the flag and the instrument for flying it are intertwined in the display of the flag, and the Covenants require association pre-approval for both." The court proceeded to explain that the association’s regulation did not withstand scrutiny under the federal flag act because the association’s attempts to enforce restrictions on the flag pole amounted to attempts to enforce "restrictions that prevent the display of the American flag." The court found that the association’s pre-approval process was "a purely arbitrary system with no specific time, place, or manner restrictions… (the association) is the sole arbiter of construction or modification plans, and it may withhold approval for any reason. By applying broad, varying, and subjective considerations, Plaintiff (the association) imposes unreasonable restrictions that are not necessary for protecting its interests."
Although the Georgia state court held that certain restrictions on flag poles could come within the reach of the federal law, some other commentators believe that the language of the federal flag act should not be read to apply to poles, but only to flags. This unreported state court decision is certainly not the last word on this issue, and we can very likely expect more litigation on this issue in the future.
Lesson for Associations
The lesson for community associations is that, though a homeowner can waive certain rights when he exercises his freedom to contract and willingly accepts the restrictions of his association’s declaration and other governing documents, public policy in the form of federal (or state) law can trump such contract. Given that the federal law (and now the state law) has singled out display of the U.S. flag as a specially protected form of speech, associations will need to review their flag restrictions to ensure they are narrowly tailored in terms of time, place, and manner to protect a substantial, expressed interest of the association.