On June 1, the Colorado Senate followed the House's lead and passed a bill that would prevent homeowners' associations in the state from banning a wide variety of signage on private property, including Black Lives Matter and Thin Blue Line flags. If Governor Jared Polis signs the legislation, as expected, the measure will become Colorado law.
The development pleases Mark Silverstein, legal director for the ACLU of Colorado, which advocated for more than fifty property owners from across the ideological spectrum who objected to their HOAs' heavy-handedness regarding such displays. "The bill will be a major step forward to advance the free-speech rights of the thousands of Coloradans who live in HOA-controlled communities," Silverstein says.
Among those who brought concerns over these HOA rules to the fore were Littleton's Kara and Ben Wilkoff, who put up a Black Lives Matter flag outside their home after purchasing it last August. On December 24, they received a so-called "courtesy notice" from the Kensington Ridge/Cobblestone Village homeowners' association informing them that the flag violated HOA rules and had to come down.
Back-and-forth correspondence regarding the flag continued for the next couple of months. On February 22, the Wilkoffs received a letter from an attorney representing the HOA that stated: "The Declaration at Article IV, Section 4.3 prohibits the display of signs on a Lot. The flag in question constitutes a sign and as such is prohibited by the terms and conditions of the Declaration. As a result, there is nothing that the Board of Directors could approve. Furthermore, the flag in question does not constitute an Improvement to property. Since this is not an Improvement to property, approval by the Board or Architectural Committee could not be obtained."
As noted in the introduction to House Bill 21-1310, entitled "Homeowners' Association Regulation of Flags and Signs," the HOA wasn't exceeding its authority. "Current law limits the application of architectural and landscaping regulations of common interest communities (also known as HOAs) so as to require that they allow displays of the American flag, service flags such as the 'blue star' and 'gold star' flags, and political signs, subject to specific statutory criteria. For example, the statute allows political signs to be prohibited outright except during an election season, defined as the period from 45 days before an election to seven days after the election."
The bill, sponsored by Representative Lisa Cutter and Senator Robert Rodriguez, "simplifies and broadens these protections," according to its summary, "requiring an HOA to permit the display of any noncommercial flag or sign at any time, subject only to reasonable, content-neutral limitations such as the number, size or placement of the flags or signs."
Those provisions make sense to Silverstein. The language "provides that HOAs cannot prohibit signs and flags, and they cannot regulate them on the basis of their message or their symbolic content," he notes. "The bill does provide that HOAs can adopt reasonable, content-neutral regulations over the number and size of signs, and maybe something about their placement. But no longer will HOAs be able to say, 'No social justice signs, no Black Lives Matter signs, no Thin Blue Line flags.'"
While HOA bans on BLM signage got the most publicity locally, Silverstein emphasizes that the legislation doesn't discriminate on the basis of politics. "One of the people who testified last week at a House committee was a former police officer who got in touch with us," he says. "He has flown a Thin Blue Line flag for the past four years, and he put it up after the shooting in Boulder at a King Soopers where an officer died in the line of duty — and afterward, he got a letter from his HOA telling him he had to take it down. He's one of the five or six dozen people who contacted the ACLU about this issue over the last several months, and he testified about his experience, why he flies that flag, and why he believes he should have the right to fly that flag — and if the bill is signed into law, he'll be able to do that again."
Plenty of other people will see a benefit, too. Silverstein cites a recent Denver Post report that "at least 60 percent of Colorado homes are in HOA-controlled communities, and most of them have restrictions on signs and flags. So there are thousands of people who have been silenced by these rules. And this bill will end that silence."
Click to read the final, approved version of HB 21-1310.
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