Update: The Senate approved House Bill 21-1310 on a 25-10 vote on June 1, sending the bill to Gov. Jared Polis.
By Jeffrey A. Roberts
CFOIC Executive Director
Homeowners’ associations could not ban signs and flags based on their content or message under a bill making its way through the Colorado General Assembly.
Rep. Lisa Cutter, the Jefferson County Democrat who introduced House Bill 21-1310, said she has received “disturbing reports” from all over the state regarding HOAs “prohibiting Coloradans from freely expressing themselves using signs and flags in their yards.” The issue, she said, “spans all points of the political spectrum” from Black Lives Matter signs to Thin Blue Line flags that express support for law enforcement officers.
Last fall, the Lowry Community Master Association changed its policy on lawn signs after several residents complained about receiving violation notices for displaying signs with social justice messages. Westword has reported on disputes in Littleton and Lafayette between residents and HOAs over Black Lives Matter signs.
“Most Colorado homes are in HOAs and almost every new home is in an HOA-controlled community,” said Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, during a House Transportation and Local Government Committee hearing Tuesday. “Almost all of them restrict flags and signs. The result is that thousands and thousands of Coloradans are silenced by these HOA rules.”
Silverstein noted that the Colorado Constitution (Article II, Section 10) protects the right to speak out even more broadly than does the First Amendment.
The committee heard from multiple people who have been ordered to remove yard signs, including an Arvada resident who displayed a Black Lives Matter sign. In protest, he said he spray-painted “BLM” on the tailgate of his pickup truck, which he parks on the street. The HOA board then claimed it had the power to restrict messages written on vehicles as well.
“I think my family’s First Amendment rights have been violated,” he told lawmakers. “I understand that HOA bodies have the power to limit this kind of speech in Colorado, and I don’t think that represents the Colorado I’ve lived in for more than 20 years.”
Current law prohibits HOAs from restricting the display of American flags and military service flags, but it allows HOAs to bar the display of political signs except during an election season. HB 21-1310, which passed the House on a preliminary vote Wednesday, repeals much of that language and states that a homeowners’ association cannot prohibit or regulate the display of flags, window signs or yard signs “on the basis of their subject matter, message, or content.”
The bill allows HOAs to set “reasonable, content-neutral” regulations on the number, location and size of flags and signs.
“You couldn’t put a billboard in your front yard,” Cutter said. An amendment added to the bill clarifies that HOAs may prohibit signs and flags with commercial messages.
During debate on the House floor, some representatives said they oppose HB 21-1310 because government shouldn’t interfere with contractual agreements between HOAs and residents. “When you buy a home, you’re given the covenants, conditions and restrictions. You’re able to review those” and decide whether you’re still willing to move into that home, said Rep. Dan Woog, R-Erie.
Some lawmakers expressed support for the bill while predicting it will lead to additional conflicts.
“Here’s a cautionary note: A flag that you don’t like may end up across the street from you or next door,” said Rep. Andres Pico, R-Colorado Springs. “This is opening a can of worms, but I do support this moving forward.”
Added Rep. Richard Holtorf, R-Akron: “I will say there is danger because now any flag can fly. I believe, and I’m going to ask the bill sponsor for clarification, if we have a flag — for example, BLM — that flag can fly (and) other types of flags that may be very controversial politically. And yes, I’m going to say it, if you want to fly the Confederate battle flag, I believe that also falls under this, as distasteful as that might be. But it goes back to First Amendment rights.”
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