Flag poles

I have done some causal research on Flagpoles. Our HOA does not allow a flagpole but you can display a flag from a house on a flag holder. Recently a resident put up a flag pole. The person did not put in an archetectural request either... so there are two questions.
1. Can the person be asked to take it down due to the failure to put in a request.
2. Can flag poles in the subdivisions be banned because the law that was passed was not that flagpoles could not be banned but the display of the flag could not be banned.

Maybe it is just a flag 'holder' in the lawn. Problem solved.

The association can have the person take it down if the pole is on common property. If the pole was place on private property, or property that the owner has the exclusive right to use, then the Federal "Freedom to Display the Amercian flag Act" would cover this (see Sec. 3). If the pole is of a reasonable height and the flag is of reasonable size, I think you would have a problem with a court agreeing with you that the owner can fly a flag without a pole. Even the flags in brackets attached to a unit have a pole. I'm not a lawyer but I think you'd have a problem with this. You probably could limit the pole to 20' and the flag to 4' x 6' to prevent those oversized flags that flap so noisily.

You really don't want to end up on the 6 o'clock news fighting the American flag. Take the opportunity to come up with a reasonable new bylaw of rule that complies with the Federal Act. It will be a lot less divisive.

Joe

An Act

To ensure that the right of an individual to display the flag of the United States on residential property not be abridged.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Freedom to Display the American Flag Act of 2005'.

SEC. 2. DEFINITIONS.

For purposes of this Act--

(1) the term `flag of the United States' has the meaning given the term `flag, standard, colors, or ensign' under section 3 of title 4, United States Code;

(2) the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603);

(3) the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and

(4) the term `member'--

(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association;

(B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and

(C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.

SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES.

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.

SEC. 4. LIMITATIONS.

Nothing in this Act shall be considered to permit any display or use that is inconsistent with--

(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or

(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

If the average HOA lot or condo patio is the same size I might agree with you. We had a court fight here a few years ago (not HOA but between two neighbors, one who put up one of these giant flags and his neighbor who said the flapping kept him awake all night. (The guy had it lit so he wouldn't have to take it down at night.) Of course the first neighbor raised all of the patiotism issues, so the second neighbor asked if it would be all right to use a boom box to blast the "Star Spangled Banner" into his neighbor's bedroom window at 3am. The guy with the flag lost - noise is noise. Maybe if Trump put up a large digital display of the flag waving, that would work as well.

Joe

The pole can probably be fought as a building code compliance issue. The vast majority of (residential) poles actually do not meet the requirements of the IBC 2003 (local codes in many cases are even stricter).
The pole must not be closer than 150% of it's lenght from ANY road/vehicle way.
The pole with mpounted flag must withstand a 130mph wind gust for 3 seconds.
etc...etc...etc

04/04/2008 1:11 AM Quote Reply
I have done some causal research on Flagpoles. Our HOA does not allow a flagpole but you can display a flag from a house on a flag holder. Recently a resident put up a flag pole. The person did not put in an archetectural request either... so there are two questions.
1. Can the person be asked to take it down due to the failure to put in a request.
2. Can flag poles in the subdivisions be banned because the law that was passed was not that flagpoles could not be banned but the display of the flag could not be banned.

Steven,

Yes, I believe your assn can ask the member to take down the flag pole. Not so much because he didn't recieve prior approval but because the assn does not allow flagpoles. I believe you are correct in saying the law (Freedom to Display American Flag Act of 2005) does not address flagpoles, only the American flag. So, yes, they can continue to disallow flagpoles, unless there is a state law to the contrary.

This is a problem in many associations. Flags are allowed but flagpoles are not. Many of the cases which have received nationwide attention were about flagpoles and not the flag. A number of years ago AZ passed a law which does address flagpoles which says the assn may adopt rules regarding the size and placement of the flagpole. When the bill was first introduced, flagpoles were not addressed. I contacted the sponsor and asked for an amendment addressing flagpoles which he complied with.