HOA Nut House

Some areas ban signs; Legislature says that's illegal

By Trista Freed and Mike Hall | The Capital-Journal

Are political yard signs protected by the free speech provision of the U.S. Constitution or can a neighborhood get together and agree not to allow them?

That is the question being raised by some people just learning of the passage of a new law, HB 2307, by the Kansas Legislature earlier this year. The bill, introduced by Sen. Phillip Journey, R-Haysville, makes it illegal for neighborhoods to adopt restrictive covenants

For several election cycles, Journey received complaints from people who couldn't put up political signs endorsing candidates in their yards.

"These rules are often part of the covenants in higher-end, gated communities," Journey said. "Often people don't know about it until after they already own the home."

These restrictions refer to any kind of sign or advertising.

"In Pepper Tree, we don't even allow a for sale sign," said Kelly Lenz, president of the Pepper Tree Park Homeowners' Association.

The association's board of directors is elected by the residents of the subdivision.

Pepper Tree makes its covenants easily accessible for homebuyers on the Internet. However, many times homebuyers don't know the covenants until they have broken them.

"A lot of people don't have any idea because it's not brought to their attention by the sellers or listed with the deed or purchase contract," Journey said.

The bill, which was passed May 18, seems to have passed under the radar of most neighborhood committees.

"I didn't know anything about it and we'd had a committee meeting Tuesday and no one had brought it up," Lenz said.

There was a positive response when the bill was brought up for approval.

"It's important to remember that this bill passed unanimously in both the House and the Senate," Journey said.

The bill limits the size and duration of the signs in an attempt not to cause disruption.

The signs can be up for 45 days before the election and two days afterward. It also must be less than six square feet.

"I think its good public policy to let people participate in politics, and this is one way people can do that," Journey said.

Lenz said he doesn't think the bill will have an effect at Pepper Tree.

"People who move here know what the rules are," Lenz said. "The property outside your home isn't really yours, it belongs to the community of Pepper Tree. All you really own is the actual residence."

However, it isn't clear whether such laws as HB 2307 are constitutional.

David L. Hudson Jr., a First Amendment scholar for the First Amendment Center, based at Vanderbilt University, has done research that casts doubt on the legitimacy of such laws.

Although cities and other government entities are constrained by the First Amendment in regulating political yard signs, there is no similar restraint imposed on private homeowner and condominium associations," he wrote in an article for the FAC. "The First Amendment generally protects people only from government interference with speech."

He cited a Pennsylvania state court ruling that a condominium association didn't violate the First Amendment by removing political yard signs in accordance with a section of the association's declaration of rules prohibiting the posting of signs at individual units.

"The courts of this Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the federal and our Commonwealth's constitutions," the ruling said. "One of the fundamental precepts which we recognize, however, is the individual's freedom to contractually restrict, or even give up, those rights. The Cappuccios (the homeowners challenging the sign prohibition) contractually agreed to abide by the provisions in the declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property."

Trista Freed can be reached at t.trista.freed@cjonline.com. Mike Hall can be reached at (785) 295-1209 or mike.hall@cjonline.com.

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